Anastacio Garcia-Franco and Carmen Esquivel-Rodriguez v. Immigration and Naturalization Service

748 F.2d 518, 1984 U.S. App. LEXIS 16443

Opinions

MEMORANDUM FOR PUBLICATION

Footnotes

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

Before DUNIWAY, FLETCHER and REINHARDT, Circuit Judges.

Petitioners seek review of an order of the Board of Immigration Appeals dismissing their appeal from the immigration judge’s denial of their motion to reopen their deportation proceeding. Petitioners sought to reopen under 8 C.F.R. § 242.22 (1983) so that they might demonstrate that evidence seized in violation of their fourth amendment rights should have been suppressed at the deportation hearing.

We uphold the Board’s decision on the basis of the Supreme Court’s recent decision in Immigration and Naturalization Service v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), holding that the fourth amendment exclusionary rule is not applicable in deportation proceedings. We disagree with the dissent that sanctions should be imposed against counsel. The circumstances of this case cannot be equated to those in In Re Campos, 737 F.2d 824 (9th Cir.1984).¹

The petition is denied.

FOR PUBLICATION

The majority agrees to publication under Ninth Circuit Rule 21(e).

1

. In In re Campos, at 824, the court found in addition to finding that the attorney filed the appeal solely for the purpose of delay that he jeopardized "the rights of his clients through the extremely poor quality of his work.” In this case despite the colloquy quoted by Judge Duni-way, it is not at all clear to the majority that the appeal was filed for purposes of delay. Counsel pressed earnestly in his brief and at oral argument what he apparently felt was a legitimate legal issue. He stated as part of his response to Judge Duniway that prior counsel’s failure to act caused his client to lose substantial rights. While the answer is confusing and possibly contradictory, this sometimes occurs in oral argument, particularly when counsel is eager to reply and does not wait to digest fully a hostile question. We should be most reluctant to penalize a lawyer for trying to protect his client’s rights and should hesitate to take actions which might deter others from taking cases, even those that might require courts to approach problems with greater enlightenment or compassion than precedent currently supports.