Ciro Espinoza v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

CIRO CHAVELAS ESPINOZA, AKA Ciro No. 13-72016
Chavelas,
Agency No. A073-957-998
Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 11, 2017**

Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.

Ciro Chavelas Espinoza, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to suppress evidence and

terminate removal proceedings, and ordering removal. We have jurisdiction under

*
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).
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 for review.

The agency did not err or violate due process in denying Espinoza’s motion

to suppress evidence and terminate removal proceedings, where Espinoza did not

demonstrate that his statements to immigration officials at the border were

obtained through an egregious violation of the Fourth Amendment, see Lopez-

Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (a Fourth Amendment

violation is egregious if evidence is obtained by a deliberate violation of the Fourth

Amendment, or by conduct a reasonable officer should have known is in violation

of the Constitution), and Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th

Cir. 2009) forecloses his contention that his statements were obtained in violation

of 8 C.F.R. § 287.3(c), see Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (an

alien must show error and prejudice to prevail on a due process claim). To the

extent Espinoza urges us to reconsider our holding in Samayoa-Martinez, a three-

judge panel cannot overrule circuit precedent in the absence of an intervening

decision from a higher court or en banc decision of this court. See Avagyan v.

Holder, 646 F.3d 672, 677 (9th Cir. 2011).

The agency also did not err or violate due process by admitting into evidence

his statements to immigration officials, where the statements were probative, their

2 13-72016
admission was fundamentally fair, and Espinoza failed to establish that they were

inaccurate or obtained by coercion. See Espinoza v. INS, 45 F.3d 308, 310 (9th

Cir. 1995) (“The burden of establishing a basis for exclusion of evidence from a

government record falls on the opponent of the evidence, who must come forward

with enough negative factors to persuade the court not to admit it.” (internal

citation omitted)); Lata, 204 F.3d at 1246.

To the extent Espinoza contends that he was entitled to cross-examine the

border officials who prepared his statement, we reject this contention. See 8

U.S.C. § 1229a(b)(4)(B); Espinoza, 45 F.3d at 311 (aliens in deportation

proceedings may not assert a cross-examination right to prevent the government

from establishing uncontested facts).

PETITION FOR REVIEW DENIED.

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