Navarro-Chalan v. Ashcroft

          United States Court of Appeals
                       For the First Circuit


No. 03-1518

                    JOSE TEODORO NAVARRO-CHALAN,

                            Petitioner,

                                 v.

                  JOHN ASHCROFT, Attorney General,

                            Respondent.


              ON PETITION FOR REVIEW OF AN ORDER OF THE
                     BOARD OF IMMIGRATION APPEALS


                               Before

                      Lynch, Lipez, and Howard,
                           Circuit Judges.



     John P. Bueker, with whom Ropes & Gray LLP and Bradford E.
Steiner were on brief, for petitioner.

     Alison Marie Igoe, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, and Michael P. Lindemann,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.



                         February 25, 2004
            LYNCH, Circuit Judge.              Jose Teodoro Navarro-Chalan, a

native and citizen of Peru, was arrested by INS agents on February

20, 1996 for having overstayed his permission to be in this

country.     He was ordered deported in August 1998, and the BIA

affirmed that order in March 2003.              Navarro has never argued that

he should be allowed to stay in the United States because he is

legally    here;   he   argues   only     that    the   INS   arrest   and   later

proceedings were so flawed as to entitle him to the relief of

cancellation of deportation. On his petition for review, we uphold

the order of deportation.

                                          I.

            The following facts appear from the decision of the

Immigration     Judge   or    from   the       record   and   are   supported   by

substantial evidence.        In February 1996, based on information from

the United States Customs Service and from INS Special Agent

Jarvis, the INS determined that a man named Jose Teodoro Navarro-

Chalan had entered the United States in New Orleans on August 2,

1990 and was presently working in Boston for Dobbs, a catering

company    at   Logan   Airport,     in    violation     of   immigration    laws.

Although it is not clear from the record how this information was

obtained, Navarro admitted entering the United States as a crewman,

and INS regulations require that crewmen register with the INS in

order to receive landing privileges, which allow them to stay in

the United States for up 29 days while their ship remains at port.


                                        -2-
8 C.F.R. § 252.1(c)-(d).     Presumably, the INS had some record of

Navarro's admission as a crewman and suspected from the length of

his stay and his current job that he had overstayed his landing

privileges.

             The INS issued a warrant for Navarro's arrest.   The INS

arranged for Dobbs to instruct five of its employees to go to the

international terminal at Logan Airport, where the INS had an

upstairs facility, on February 20, 1996. Navarro testified that he

could have chosen not to go, but only at the risk of losing his

job.

             At around 10:20 a.m., the employees arrived at the

terminal and were met by six government agents, including three

armed police officers.      Several employees were questioned and,

after they produced identification, were allowed to step away from

the group.    When Navarro was asked for his name and nationality, he

produced a driver's license and stated that he was from Peru.      At

10:30 a.m., an INS agent filled out a Form I-213 (Record of

Deportable Alien) indicating that Navarro was a Peruvian citizen

who had entered this country as a crewman on August 2, 1990 and had

been authorized to stay for no longer than thirty days.       About 15

minutes later, Navarro was served with the previously prepared

arrest warrant.      He was simultaneously served with Form I-286

(Notification to Alien of Conditions of Release or Detention),

which informed him in English and Spanish that he was being


                                  -3-
released on his own recognizance, that he had the right to legal

representation, that free representation was available, and that a

hearing would be held before an immigration judge.           Navarro signed

the form, acknowledging its receipt.

            Navarro testified that he was then taken upstairs to an

interrogation room at around 11:00 a.m., where he answered several

agents' questions about when and how he had entered the country.

He testified that one agent told him that he would be deported from

the United States that very day.           At some point before Navarro was

released, he was served with a copy of an Order to Show Cause,

which notified him in Spanish and English that any statements he

made to an INS officer could be used against him and which

reiterated that Navarro had the right to representation, that free

representation was available, and that he would have a hearing

before an immigration judge. Although Navarro later testified that

he was never informed of his rights orally, the order indicates

that it was read orally in Spanish to Navarro.           Physical force was

not used at any time, nor was Navarro deprived of the use of the

bathroom.

                                      II.

            On July 2, 1997, Navarro had a hearing before an IJ.           He

testified, invoking his Fifth Amendment privilege several times.

He   also   sought   to   suppress,   on    both   constitutional   and   non-

constitutional grounds, all evidence arising from his February 20,


                                      -4-
1996 statements to the INS agents, including Form I-213.                      The IJ

held an evidentiary hearing on the issue of suppression, in which

Navarro again testified. After the hearing, the IJ made a specific

finding that Navarro's statements to the INS agents were voluntary,

noting, inter alia, that "[r]espondent presented no evidence that

he was threatened or coerced to answer the questions by the agent."

The IJ also rejected Navarro's Fourth Amendment argument on the

ground       that   the   exclusionary    rule    does   not     apply   to    civil

deportation hearings, at least absent extraordinary circumstances

not present here.         The IJ did not address certain claims arising

under INS       regulations.     The     IJ    found   Navarro    deportable     and

permitted voluntary departure.            The BIA affirmed without opinion.

                                       III.

               Petitioning for review from the deportation decision,

Navarro argues that his statements on February 20, 1996 should have

been suppressed as the fruit of an unlawful interrogation in

violation of his Fourth and Fifth Amendment rights and that,

without this information, there is insufficient evidence to deport

him.       He also says that the procedures used by the agents violated

INS regulations 8 C.F.R. §§ 287.3 and 242.2(c) (1995).1                   We deal

with each argument in turn.




       1
          The 1995 version of the regulations applies because the
alleged violations occurred on February 20, 1996.

                                         -5-
            As    to   Navarro's      first    argument,    we   note   that    the

government    need     only    establish      the   respondent's   identity     and

alienage to meet its burden on deportation.               INS v. Lopez-Mendoza,

468 U.S. 1032, 1039 (1984).                The burden then shifts to the

respondent to show the time, place, and manner of entry in order to

defeat deportation.       Id.; see 8 U.S.C. § 1361.         The government has

met its burden here based on Navarro's pre-arrest statements of his

name and nationality, as recorded on Form I-213, which the IJ

properly refused to suppress for the reasons described below.2

Navarro, however, has made no effort to carry his burden other than

moving to suppress.

            Navarro's name is not information even subject to being

suppressed.       The identity of an alien, or even of a defendant, is

"never itself suppressible as a fruit of an unlawful arrest, even

if it is conceded that an unlawful arrest, search, or interrogation

occurred."       INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).

            The next issue is whether Navarro's pre-arrest statement

of   his   alienage,     and    its   recording      in   Form   I-213,   may    be


      2
          Navarro goes on to complain about statements made later
that day, arguing that he was inadequately advised of his rights.
We do not reach the question of the suppression of Navarro's later
statements, since the government has already met its burden on
deportation based on his pre-arrest statements.       We do note,
however, that the record flatly refutes Navarro's assertion to this
court that he was never advised of his rights. Navarro was served
with Form I-286, which informed him in Spanish of his right to a
hearing and to representation, simultaneously with his arrest
warrant. Navarro's counsel conceded to the IJ that Navarro can
read Spanish.

                                        -6-
suppressed.      Navarro     first   argues   that   his    statement   of   his

alienage should be suppressed because the arrest was in violation

of the Fourth Amendment.       We reject this argument for two reasons.

First, Navarro's statement of alienage was made before he was

arrested. Navarro was not in custody until the warrant was served.

The IJ had adequate support for his finding that, before that

point, Navarro voluntarily chose to be there rather than to risk

losing his job, and there was no evidence that Navarro asked to

leave, was told that he could not leave, or was restrained from

leaving until the warrant was served.             Second, Navarro has not

demonstrated that his arrest violated the Fourth Amendment.                  Once

Navarro's identity was confirmed, he was lawfully arrested pursuant

to the warrant.    The arrest was the prelude to a civil immigration

proceeding, and not to a criminal proceeding.

             Navarro, attempting to bring himself within the glimmer

of hope of suppression left open by Lopez-Mendoza, also argues that

his statement of his alienage should be suppressed as involuntary.

In Lopez-Mendoza, the Supreme Court concluded that the cost of the

exclusionary rule generally outweighs its benefits in the context

of civil deportation hearings.          Id. at 1050-51.          The Court thus

held that the exclusionary rule generally should not apply in that

context, but may have left the door open in cases of "egregious

violations of Fourth Amendment or other liberties that might

transgress    notions   of    fundamental     fairness     and   undermine   the


                                      -7-
probative value of the evidence obtained."          Id.    Navarro's list of

complaints, however, does not rise to that level of egregiousness.

The IJ found, with adequate support, that Navarro's statements were

voluntary.

            Navarro disagrees, insisting that his statement of his

alienage must be found involuntary because of the site of the

questioning and because he was not given a statement of rights

before he revealed his nationality. We reject these arguments. As

to the site of the questioning, nothing requires the INS to perform

an immigration raid on the premises of an employer, particularly

when the employer cooperates with the INS to make its suspect

employees available at another location.                Employers have good

business reasons for such agreements, which avoid disruption of the

workplace.    As to the statement of rights, the failure to notify a

respondent of his or her rights does not render an otherwise

voluntary statement inadmissible in a deportation case.                   See

Navia-Duran v. INS, 568 F.2d 803, 808 (1st Cir. 1977).             Here, the

IJ had adequate evidence to conclude that Navarro's decision to

cooperate    by   giving   his    name   and   nationality   was   voluntary.

Navarro saw others being asked to step back, away from the INS

questioners,      when     they     cooperated     by     presenting    their

identification.

             We turn to Navarro's argument that the INS did not follow

its own regulatory procedures.           Again, the record flatly refutes


                                     -8-
these claims.   Regulation 287.3, by its own terms, applies only to

warrantless arrests.   8 C.F.R. § 287.3; see Navia-Duran, 568 F.2d

at 809.   Navarro's arrest occurred pursuant to a warrant.   Navarro

argues, however, that in the 20 to 25 minutes after he got to the

terminal but before the arrest warrant was served, he was being

held without a warrant and was thus within the scope of § 287.3.

We reject this argument.     As we have said, Navarro was not in

custody until the arrest warrant was served.   And even if he was in

custody during that 20 to 25 minute period, the fact that the

officers took time to confirm his name and nationality before

serving the warrant does not mean that he was somehow "arrested

without a warrant."    Finally, even if § 287.3 were applicable and

were violated, INS regulations state that § 287.3 and the other

regulations in its subpart "do not, are not intended to, shall not

be construed to, and may not be relied upon to create any rights,

substantive or procedural, enforceable at law by any party in any

matter, civil or criminal."     8 C.F.R. § 287.11 (1995) (current

version at 8 C.F.R. § 287.12).3



     3
          Navarro argues that § 287.11 does not bar him from
"pursu[ing] remedies for regulatory violations where constitutional
rights are at stake or where the violation affects the overall
fairness of the proceeding." But even if this were so, he has not
shown that those conditions are present here. As we have said,
Navarro's statements were voluntary. Cf. Navia-Duran, 568 F.2d at
810 (reversing a deportation order when an INS officer never
notified the respondent of her rights, thus violating 8 C.F.R. §
287.3, because this failure, combined with other facts, indicated
that respondent's statements were coerced).

                                  -9-
          Regulation 242.2(c), which does apply to arrests by

warrants, was satisfied when Navarro was given Form I-286 and the

Order to Show Cause, both of which contained statements of his

rights.   Navarro argues that § 242.2(c) requires that the Order to

Show Cause must be explained to the respondent contemporaneously

with the service of the arrest warrant, and that, here, it was read

to Navarro (in Spanish) five hours late.       Regulation 242.2(c)

states that "[w]hen a warrant of arrest is served under this part,

the respondent shall have explained to him/her the contents of the

order to show cause . . . ."   The regulation does not specify how

long an agent can wait after the service of the warrant before

explaining the Order to Show Cause.   But even if Navarro is correct

that five hours is too long, he concedes that his statements could

be suppressed only if he could show prejudice from the violation of

the regulation.   No such prejudice has been shown here.        The

statements upon which Navarro's deportation was based were made

before the arrest warrant was served, so even if the Order to Show

Cause had been read simultaneously with the service of the warrant,

it would not have affected the evidence supporting Navarro's

deportability.

          In sum, the arguments presented in this petition for

review are without merit.




                               -10-
                                  IV.

          We   affirm   the   order   of   deportation,   including   the

privilege of voluntary departure from this country.        So ordered.




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