U.S. v. Encarnacion-Galvez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________

No. 91-1853
___________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROBERTO ENCARNACION-GALVEZ,

Defendant-Appellant

___________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas

___________________________________________________________________

(June 17, 1992)

Before KING and WIENER, Circuit Judges and LAKE,* District Judge.

SIM LAKE, District Judge:

Defendant-Appellant, Roberto Encarnacion-Galvez, appeals his

conviction for illegal reentry into the United States following

deportation in violation of 8 U.S.C. § 1326. Encarnacion-Galvez

argues that the district court erred in denying his motions to

dismiss the indictment and to suppress evidence. We AFFIRM.

Facts and Procedural History

Encarnacion-Galvez is a citizen of Mexico. He unlawfully

entered the United States in May of 1983. In 1987 he was convicted

*
District Judge for the Southern District of Texas, sitting
by designation.
of aggravated robbery in a Texas state court and received a ten-

year sentence. While Encarnacion-Galvez was in state prison the

United States Immigration and Naturalization Service initiated

deportation proceedings against him under 8 U.S.C. § 1251(a). This

statute provided a number of alternative grounds for deporting an

alien. Among those grounds were entry into the United States

without inspection and commission of a crime of moral turpitude

within five years after entry into the United States for which a

sentence of confinement of a year or more is imposed.1 At the

hearing before the district court on his motion to dismiss the

indictment Encarnacion-Galvez gave the following answers to ques-

tions about a meeting he had with his attorney after an immigration

judge ordered him to show cause why he should not be deported:

Q. And what, to your recollection, did you discuss
with her about your immigration status?

A. She told me that I will be deported, but I need to
appear before a judge.

Q. And what did she advise you in respect to appearing
before the judge?

A. She told me that I had a chance to stay here in
Texas or to be sent back to Mexico.

Q. What did she tell you would happen if you chose to
fight the case and try to stay in the United
States?

1
At the time of Encarnacion-Galvez's deportation these
provisions were found in 8 U.S.C. § 1251(a)(2) and (4). They have
since been recodified and are now found in 8 U.S.C. § 1251(a)(1)(B)
and (2)(A)(i).

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 A. She told me that my chances wasn't very big because
I was with aggravated crime committed, but she told
me that I have some chances for the long period of
time that I have been here in the United States.

Q. Was your decision to fight the immigration case,
Mr. Encarnacion?

A. No.

Q. Why did you choose not to fight the case?

A. Because she told me that, if I wanted to fight it,
I needed to be in jail for six months, for a period
between six months to a year.

Q. What did you choose to do, instead, Mr.
Encarnacion?

A. According to what she told me and explained to me
is that I was able to go back to Mexico, if I would
sign a voluntary departure.

Q. Did you, in fact, sign a document waiving your
right to a hearing?

A. Yes.2

Encarnacion-Galvez identified for the district court a Spanish

language instrument entitled "Statements Given For The Final

Deportation Order To Be Issued" that he and his attorney signed on

March 17, 1988. Encarnacion-Galvez testified that he discussed the

"Statements" with his attorney and read the instrument before

signing it, although he did not read Spanish well.3 In the

"Statements" Encarnacion-Galvez acknowledged, among other things:

(1) I have been given the Order to Show Cause on 3-1-88,
and my true, correct and complete name is as stated in
that document.

2
Record Vol. 2 at pp. 8 and 9.
3
Record Vol. 2 at pp. 10 and 12-14.

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 (2) I have consulted with the attorney mentioned below,
and I hereby give up my right to have a hearing before an
immigration judge.

(3) My lawyer has fully explained my rights to me. I
understand my rights, and I waive further explanation of
my rights by the court.

(4) I hereby admit all the allegations of fact contained
in the Order to Show Cause as true and correct as
written.

(5) I hereby agree that I am subject to be deported from
the United States in accordance with the charges in the
Order to Show Cause.

. . .

(7) I am requesting the issuance of an order for my
deportation to Mexico.

. . .

(9) I will accept a written order of deportation to the
country I designate as the final disposition of this
deportation process.4

The March 1, 1988, Order to Show Cause referred to in the

"Statements" alleged that Encarnacion-Galvez was a citizen of

Mexico, that he entered the United States illegally in May of 1983,

that he was convicted of aggravated robbery on September 1, 1987,

for which he was sentenced to ten years' confinement in the Texas

Department of Corrections, and that he was deportable under

§§ 241(a)(2) and (4) of the Immigration and Nationality Act5

because he had entered the United States illegally and, after

4
Although the only version of the "Statements" in the record
is in Spanish (Defendant's Ex. No. 1), Encarnacion-Galvez does not
dispute the English translations of these portions of the "State-
ments."
5
Formerly 8 U.S.C. § 1251(a)(2) and (4).

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entry, had been convicted of a crime of moral turpitude for which

he was sentenced to confinement of a year or more.

On April 29, 1988, the immigration judge signed a Decision and

Order deporting Encarnacion-Galvez to Mexico.6 In the Decision and

Order the immigration judge acknowledged Encarnacion-Galvez's

"Statements" waiving a hearing, admitting the charges in the Order

to Show Cause, and conceding his deportability. The judge

concluded that there were no factual or legal disputes to be

resolved, and that "as a result of respondent's admitted criminal

record in the United States, there [is] no relief from deportation

apparently available to him or discretionary considerations to be

exercised by the [judge] . . . ." Encarnacion-Galvez did not

appeal the order of deportation or pursue further administrative

remedies.7

Encarnacion-Galvez was deported on September 5, 1990. He did

not receive consent from the Attorney General to apply for readmis-

sion to the United States after his deportation. On March 1, 1991,

United States Border Patrol agents Torrez and Guerrero, patrolling

in an unmarked vehicle, observed Encarnacion-Galvez driving a

vehicle in Mineral Wells, Texas. Agents Torrez and Guerrero were

suspicious that Encarnacion-Galvez and a passenger, Ramirez, were

6
Record Vol. 1 at p. 50.
7
Record Vol. 1 at p. 50. An alien who is dissatisfied with
the order of an immigration judge may appeal to the Board of
Immigration Appeals and from there to a United States Court of
Appeals.

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illegal aliens because of their physical appearance and manner of

dress, and the agents followed the vehicle driven by Encarnacion-

Galvez into a parking lot. The vehicle driven by Encarnacion-

Galvez stopped and parked before the agents' vehicle reached the

lot. After parking in a manner that did not prevent Encarnacion-

Galvez from driving or walking out of the lot, the agents

approached Encarnacion-Galvez's vehicle on foot. Both agents were

dressed in plain clothes and were armed, but their weapons were not

visible to Encarnacion-Galvez or Ramirez. Speaking through the

automobile window, the agents identified themselves as Border

Patrol agents and inquired about Ramirez's citizenship status.

After Ramirez stated that he was a resident alien, agent Torrez

asked him to produce his resident alien card. Ramirez responded

that his resident alien card was at his home in Weatherford, Texas.

At Torrez's request Ramirez then got out of the car so that a

computer check could be run on his citizenship status.

While agent Guerrero continued talking with Ramirez, agent

Torrez questioned Encarnacion-Galvez, who had remained in the car,

through the passenger-side window. Encarnacion-Galvez stated that

he also was a resident alien and produced a Texas driver's license

issued in his name. When asked to produce his resident alien card,

Encarnacion-Galvez also said that he had left it at his home in

Weatherford. Encarnacion-Galvez agreed to a computer check on his

citizenship status. The computer checks conducted by agent Torrez

did not reflect that Encarnacion-Galvez and Ramirez were registered

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as resident aliens. Encarnacion-Galvez and Ramirez then agreed to

accompany the agents to Weatherford to produce their resident alien

cards. While riding in the agents' vehicle, Encarnacion-Galvez

recanted and admitted that he was not a resident alien.8

On March 28, 1991, Encarnacion-Galvez was indicted for illegal

reentry after deportation in violation of 8 U.S.C. § 1326. He

moved to dismiss the indictment and to suppress his driver's

license and his statements to the Border Patrol agents. The

district court held an evidentiary hearing on both motions.

The testimony raised three factual disputes concerning

Encarnacion-Galvez's deportation. First, contrary to the language

of the "Statements," Encarnacion-Galvez testified that he believed

that by signing the "Statements" he was agreeing to voluntary

departure, not deportation. Second, Encarnacion-Galvez testified

that he did not understand that by signing the "Statements" he

would never appear before a judge.9 This testimony contradicted

admission (2) of the "Statements" and the testimony of Encarnacion-

Galvez that he signed the "Statements" only after his lawyer told

him that if he chose "not to fight the case" and to sign the waiver

of his right to a hearing, he would not need to appear before an

immigration judge.10 Finally, Encarnacion-Galvez argued that he did

not knowingly waive his right to a hearing and to deportation

8
Record Vol. 2 at pp. 17-36.
9
Record Vol. 2 at pp. 10 and 11.
10
Record Vol. 2 at pp. 8 and 9, quoted supra.

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because at the time that he signed the "Statements," he did not

read Spanish well, did not speak English at all, and had relied

upon another inmate to translate the discussions with his lawyer.

The district court resolved these fact issues against

Encarnacion-Galvez. The court found that "the defendant obviously

knew what he was doing when he signed the ["Statements"] and know-

ingly and willingly consented to the procedure that was followed

that resulted in his deportation. And I am persuaded that he knew

he was being deported, rather than having some other kind of pro-

ceeding."11 The court also denied Encarnacion-Galvez's motion to

suppress, holding that the contact between the Border Patrol agents

and Encarnacion-Galvez was not a seizure requiring reasonable

suspicion, but only a casual contact. Alternatively, the court

concluded that if the contact was a stop that required reasonable

suspicion, the agents' experience and knowledge of the traits of

illegal aliens met that requirement.12 Encarnacion-Galvez then

entered a conditional plea of guilty preserving his right to appeal

the district court's denial of his motions.

The Motion to Dismiss the Indictment

Encarnacion-Galvez argues that the deportation proceeding was

fundamentally unfair because his waiver of a hearing before an

immigration judge and consent to deportation were neither knowing

11
Record Vol. 2 at p. 15.
12
Record Vol. 2 at p. 39.

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nor the result of his considered judgment. Because the deportation

order was obtained in violation of his due process rights, he

argues that the government cannot rely on it as an element of proof

to support his conviction under 8 U.S.C. § 1326. The government

responds that the deportation proceeding was not fundamentally

unfair because Encarnacion-Galvez failed to show either that his

waiver of a hearing and agreement to deportation were unknowing and

unintelligent, or that he suffered any prejudice from the alleged

unfairness of the deportation proceeding. We begin our analysis of

these arguments by briefly summarizing precedent in the area.

In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct.

2148 (1987), the Court held that an alien charged with illegal

reentry after deportation may collaterally challenge the validity

of his deportation in a subsequent criminal prosecution if the

deportation proceeding effectively eliminated the alien's right to

obtain judicial review of his deportation. Because the government

conceded that the deportation order at issue in Mendoza-Lopez was

fundamentally unfair, that Court had only to decide whether a

collateral challenge was permissible. The Court had no need to

decide what a defendant must show to prevail in such a collateral

challenge.13 The issue before this court is the converse of that

before the Court in Mendoza-Lopez. The government concedes that

13
The United States did not seek review of the Eighth Cir-
cuit's holding that the deportation proceeding was fundamentally
unfair and the deportation order therefore unlawful. Mendoza-
Lopez, 481 U.S. at 834, n.8, 107 S.Ct. at 2153, n.8.

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Encarnacion-Galvez can collaterally attack his deportation, but

argues that he cannot prevail on his collateral attack because his

deportation proceeding was not fundamentally unfair.

Mendoza-Lopez presupposes a two-step process for determining

when an alien can prevent his deportation from being used as a

basis for conviction under 8 U.S.C. § 1326. First, the alien must

show that the deportation hearing was fundamentally unfair.

Second, he must show that the defective deportation hearing

effectively eliminated his right to direct judicial review of the

deportation order. United States v. Palacios-Martinez, 845 F.2d

89, 91 (5th Cir.), cert. denied, 488 U.S. 844, 109 S.Ct. 119

(1988). To successfully challenge a prior order of deportation an

alien must satisfy both elements. Should he fail to prove either

element, a court need not consider the other. Palacios-Martinez,

845 at 92; United States v. Saucedo-Velasquez, 843 F.2d 832, 836,

n.6 (5th Cir. 1988).

In Palacios-Martinez the defendant challenged a deportation

order issued following a hearing at which he and a group of other

aliens appeared. The immigration judge advised them as a group of

their rights and asked them if they understood their rights and

wished to waive them. All of the aliens consented to deportation.

Palacios-Martinez later reentered the United States and was charged

with illegal reentry under 8 U.S.C. § 1326. In a motion to dismiss

his indictment, Palacios-Martinez collaterally challenged his

deportation as being fundamentally unfair because he was not

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individually advised of the rights he waived by consenting to

deportation. Alternatively, he argued that the waiver was not a

considered and intelligent decision. The court affirmed the

district court's denial of his motion to dismiss, holding that the

"alleged defects even if assumed to be true do not rise to the

level of being fundamentally unfair, thereby depriving him of due

process. Failure to ensure that a potential deportee knows and

fully understands each and every one of his rights under INS

regulations is not a deprivation of fundamental fairness."

Palacios-Martinez, 845 F.2d at 92. Although most of the court's

opinion dealt with its conclusion that the alleged procedural

deficiencies did not render the deportation proceeding funda-

mentally unfair, the court's observation that the immigration judge

"specifically determined that none of the deportees were eligible

for relief from deportation,"14 indicates that the court also viewed

the potential prejudice to the deportee as part of the equation for

determining if the proceeding was fundamentally unfair.

The court applied the same two-part test in United States v.

Zaleta-Sosa, 854 F.2d 48 (5th Cir. 1988). Zaleta-Sosa complained

that he was not advised of his right to appeal an order of the

immigration judge until the deportation hearing and that the

immigration judge did not adequately explain his right to appeal.

The court held that even if true, these complaints did not render

the hearing fundamentally unfair. Zaleta-Sosa, 854 F.2d at 51-52.

14
Palacios-Martinez, 345 F.2d at 92.

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The court also held that Zaleta-Sosa had failed to show any likeli-

hood of avoiding deportation. Zaleta-Sosa, 854 F.2d at 52, n.5.15

Perhaps because the focus of our prior decisions was whether

the underlying deportation proceedings were procedurally deficient,

they do not explicitly state that a showing of fundamental unfair-

ness also requires that the alleged procedural deficiencies caused

actual prejudice to the defendant. Although a fair reading of our

decisions submits to no other reasonable interpretation,16 we now

make manifest the requirement that a defendant must show actual

prejudice to succeed in a collateral attack of his deportation. By

a showing of prejudice, we mean that there was a reasonable

likelihood that but for the errors complained of the defendant

would not have been deported. This standard is consistent with our

alternative holding in Zaleta-Sosa and with a large body of

analogous case law dealing with collateral challenges to criminal

convictions. See Strickland v. Washington, 466 U.S. 668, 694-697,

104 S.Ct. 2052, 2068-69 (1984).

15
The district court order affirmed in Zaleta-Sosa held that
the prior deportation could be used in a criminal prosecution
because the defendant had not been denied due process at his
deportation hearing and because he had not shown prejudice from the
alleged procedural defects. Zaleta-Sosa, 854 F.2d at 50.
16
Both the Ninth and Eleventh Circuits have read Zaleta-Sosa
as requiring a showing of actual prejudice to succeed on a
collateral challenge of a deportation order. United States v.
Proa-Tovar, 945 F.2d 1450, 1453 (9th Cir. 1991); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir. 1989).

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 Encarnacion-Galvez urges us to adopt instead the "bright-line

rule" of United States v. Proa-Tovar, 945 F.2d 1450, 1453 (9th Cir.

1991), which dispensed with any requirement that a defendant show

prejudice to succeed in a collateral attack on his deportation.

The majority in Proa-Tovar held that because the INS deportation

proceeding effectively foreclosed the defendant's right of judicial

review, the government was automatically barred from using the

deportation order in a subsequent criminal prosecution regardless

of whether there were any errors in the procedure that led to the

decision to deport the defendant. We decline Encarnacion-Galvez's

invitation for several reasons. First, we must adhere to our

precedent in Palacios-Martinez and Zaleta-Sosa, which requires a

defendant to show that the procedural defects of which he complains

prejudiced him before he can succeed in a collateral attack on his

deportation. Second, even were we not bound by precedent, we find

little to recommend the Ninth Circuit's per se rule.

Although acknowledging that all other circuits that had

addressed the issue interpreted Mendoza-Lopez to require a showing

of prejudice, and that the defendant before it "presents as weak a

case as can be imagined for a showing of prejudice," Proa-Tovar,

945 F.2d at 1453, the majority in Proa-Tovar nevertheless dispensed

with the requirement that the defendant show prejudice. The court

concluded that a per se rule was more consistent with "a better

reading of Mendoza-Lopez," would encourage the INS to protect the

procedural rights of potential deportees, and would reduce the

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burden on courts in resolving collateral challenges to deportation.

Proa-Tovar, 945 F.2d at 1453-54. We are not persuaded by this

rationale.

We find nothing in Mendoza-Lopez to indicate that the Supreme

Court intended to endorse a per se rule that dispenses with any

requirement that a deported defendant show prejudice. The Court

did not have before it the issue of what procedural deficiencies in

a deportation proceeding rendered it fundamentally unfair if

collateral review were appropriate. The language from Mendoza-

Lopez cited by the Proa-Tovar majority17 deals with whether a

complete deprivation of a deportee's right of judicial review

entitles him to mount a collateral challenge. It has nothing to do

with his burden in succeeding on such a challenge.

Nor are we persuaded by the Ninth Circuit's policy arguments

for a per se rule. A deportee's right to mount a collateral chal-

lenge to his deportation already provides incentive to immigration

judges to ensure that proper procedures are followed. See Proa-

Tovar, 945 F.2d at 1455 (Farris, dissenting). We also see little

aid to judicial economy under the Ninth Circuit's per se rule since

a court would still have to scrutinize the record of the immigra-

tion proceeding to determine if a procedural defect existed. Even

were the Ninth Circuit rule to provide some incremental deterrent

to immigration judges or some reduction in the burden on the

courts, we are concerned that such a per se rule would frustrate

17
481 U.S. at 840, 107 S.Ct. at 2156.

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other important considerations, such as the finality of INS

proceedings and the requirement that an aggrieved alien pursue his

administrative remedies in the intended and more appropriate forum,

before the INS and through a direct appeal.

In criminal trials not all errors, even those of a "constitu-

tional dimension," require a reversal. See Rose v. Clark, 478 U.S.

570, 576-77, 106 S.Ct. 3101, 3105 (1986). Yet the effect of the

Ninth Circuit's per se rule would be to require more rigorous

adherence to a defendant's procedural rights in an administrative

proceeding, where the required procedures are normally less

stringent, than in a criminal trial. As Judge Williams, writing

for the court, explained in Palacios-Martinez, 845 F.2d at 92:

In evaluating a criminal trial, the threshold
for establishing that the trial was fundamen-
tally unfair is quite high. The standard for
evaluating a civil proceeding like deportation
to establish the foundation for a criminal
offense should be no lower.

We thus remain confident in the soundness of our precedent, which

requires a showing that the procedural deficiency visited demon-

strable harm on the defendant.

Having briefly defined the relevant law, we now apply it to

Encarnacion-Galvez's appeal. The three arguments that underlie his

claim of fundamental unfairness are all fact intensive: (1) whether

he thought he was agreeing to voluntary departure instead of depor-

tation, (2) whether he understood that by signing the "Statements"

he waived the right ever to appear before an immigration judge, and

(3) whether he did not understand his attorney's admonitions and

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the "Statements" he signed because of his inability to read Spanish

well and because he had to use an inmate interpreter. All of these

questions were considered and resolved against Encarnacion-Galvez

by the district court.

In pretrial matters the court reviews district court fact-

findings based on live testimony under a clearly erroneous

standard. United States v. Piaget, 915 F.2d 138 (5th Cir. 1990).

Fact-findings are accepted unless they are clearly erroneous or

influenced by an incorrect view of the law. Piaget, 915 F.2d at

140. When applying this standard of review, the court reviews the

evidence in the light most favorable to the party that prevailed in

the district court. Piaget, 915 F.2d at 140. A waiver is reviewed

in this context under the totality of circumstances approach.

United States v. Saucedo-Velasquez, 843 F.2d 832, 835 (5th Cir.

1988).

The testimony of Encarnacion-Galvez quoted above shows that

Encarnacion-Galvez told the district court that he read the

"Statements" and reviewed it with his attorney before he signed it.

His attorney told him he could appear before a judge and fight the

case, but that his chances of success were not "very big" because

of his conviction for aggravated robbery, and that the process

could take from six months to a year, while he remained in custody.

His alternative was to sign the "Statements" waiving a right to a

hearing. Encarnacion-Galvez testified that after this discussion

with his attorney he signed the "Statements" waiving his right to

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a hearing. He specifically testified that he discussed the

"Statements" with his attorney and read it before he signed it,

although he also testified he thought he was only agreeing to

"departure" to Mexico and did not realize that he would never

appear before an immigration judge. When considered in the light

most favorable to the government, we conclude that the district

court's finding of a knowing and voluntary waiver of a hearing and

consent to deportation was not clearly erroneous. We further

conclude that even accepting Encarnacion-Galvez's version of the

disputed facts, none of these procedural defects were of such a

nature as to render his deportation proceeding fundamentally

unfair. See Zaleta-Sosa, 845 F.2d at 51-52.

Moreover, even if we were to assume that the alleged procedur-

al defects occurred and did render the deportation proceeding

unfair, Encarnacion-Galvez would still be required to establish

prejudice to succeed in his collateral attack on the deportation

order. Encarnacion-Galvez never argued to the district court that

he suffered any actual prejudice from the alleged procedural

defects in the proceeding that led to his deportation.18

Encarnacion-Galvez does not contend that the grounds for deporta-

tion in the Show Cause Order and deportation order are untrue. Nor

does he contend that any basis existed for avoiding deportation.

In response to the government's brief before this court,

Encarnacion-Galvez argued that under the immigration laws in

18
Record Vol. 1 at pp. 44-49.

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existence at the time of his deportation, he "might have been

entitled to some relief."19 Other than responding to government

arguments about his inability to obtain relief from deportation

under various immigration laws,20 the only basis Encarnacion-Galvez

affirmatively articulated for such relief is the discretionary

asylum that the Attorney General may grant under 8 U.S.C. § 1253(h)

to avoid persecution of an alien because of race, religion,

nationality, or social or political affiliation if he were

deported. There is nothing in the record that even remotely

suggests that Encarnacion-Galvez had any grounds for requesting

such asylum, however, and because Encarnacion-Galvez was expressly

deportable under 8 U.S.C. § 1251(a)(2) and (4), we find this

19
Reply Brief at p. 8. Encarnacion-Galvez argues alternative-
ly that if a showing of prejudice is necessary, he need only show
that the alleged errors "might have affected" the outcome of the
deportation hearing, citing United States v. Holland, 876 F.2d
1533, 1536 (11th Cir. 1989). We view any distinction between the
prejudice test we have articulated and the one stated in Holland as
one of semantics, not of substance, given the authorities cited by
the Eleventh Circuit for its test and its actual holding, which the
court couched in terms of whether the result "would" have been dif-
ferent in the absence of the alleged errors. Assuming for argu-
ment's sake that the Holland threshold of prejudice is lower than
ours, for the reasons stated below we conclude that Encarnacion-
Galvez has not shown that he might have been entitled to relief
from deportation. See Holland, 876 F.2d at 1537.
20
Encarnacion-Galvez articulated no basis for relief from
deportation under these laws. He was not eligible for suspension
of deportation under 8 U.S.C. § 1254(a) as it existed at the time
of his deportation because he had not been in the United States for
the minimum time required. Also, given his felony conviction, it
is very unlikely that he would have been allowed either suspension
under 8 U.S.C. § 1254(a) or voluntary departure under 8 U.S.C.
§ 1254(e) because both provisions required a showing of good moral
character for various time periods of at least five years.

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possibility to be far too slender a reed to support a showing of

prejudice. For all of these reasons we conclude that the district

court did not err in denying Encarnacion-Galvez's motion to dismiss

the indictment.

The Motion to Suppress

Encarnacion-Galvez moved to suppress the evidence against him

because it was obtained as a result of an unreasonable seizure in

violation of the Fourth Amendment. After an evidentiary hearing

the district court denied the motion, holding that the contact

between the Border Patrol agents and Encarnacion-Galvez was not a

seizure requiring reasonable suspicion, but only a casual contact.

The court further held that if the contact was a stop that required

reasonable suspicion, the agents' experience and knowledge of the

traits of illegal aliens met that requirement.21

Encarnacion-Galvez argues that the contact was a Terry22 stop

that must have been supported by reasonable suspicion. He relies

on United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982)

(en banc), which held that a seizure occurs if, under all of the

circumstances, a reasonable person would not have believed that he

was free to leave. Encarnacion-Galvez contends that when agent

Torrez questioned him after Ramirez had stepped out of the vehicle,

a reasonable person in his position would not have believed he was

21
Record Vol. 2 at p. 39.
22
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).

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free to go because (1) agent Torrez did not inform Encarnacion-

Galvez that he was free to leave and (2) Encarnacion-Galvez could

not leave without Ramirez, who had left the vehicle. Encarnacion-

Galvez also argues that although Torrez's identification as a law

enforcement officer was not by itself sufficient to establish

coercion, it contributed to Encarnacion-Galvez's belief that he was

not free to leave.

"[A] district court's determination that a seizure has or has

not occurred is a finding of fact subject to reversal only for

clear error." United States v. Valdiosera-Godinez, 932 F.2d 1093,

1098, n.1 (5th Cir. 1991). Other than identifying themselves as

Border Patrol agents, the agents made no display of authority.

They did not stop Encarnacion-Galvez's vehicle, but approached it

only after Encarnacion-Galvez had parked it. The agents did not

park their vehicle in such a way that would block Encarnacion-

Galvez's path if he chose to drive or walk away. The agents only

asked Encarnacion-Galvez and Ramirez for identification and verifi-

cation of their citizenship. We conclude that the dealings between

the agents and Encarnacion-Galvez involved no coercion or deten-

tion, and that the district court's determination that no seizure

occurred was not clearly erroneous.23

23
Because we affirm the denial of Encarnacion-Galvez's motion
to suppress on this basis, we do not address the district court's
alternative basis for denying the motion.

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 Conclusion

Because the district court did not err in denying either

Encarnacion-Galvez's motion to dismiss the indictment or his motion

to suppress, we AFFIRM the district court's judgment.

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