Camarena-Sanchez v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 08-70272
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MANUEL CAMARENA- No. 08-70272 SANCHEZ, Agency No. A078-008-580 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Juan Manuel Camarena-Sanchez a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’(“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his motion to suppress

evidence and terminate proceedings. We have jurisdiction under 8 U.S.C. § 1252.

* 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). We review de novo constitutional claims and questions of law. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

The agency did not err or violate due process in denying Camarena-

Sanchez’s motion to suppress, where he did not establish that the border officials’

conduct was egregious or fundamentally unfair, see INS v. Lopez-Mendoza, 468

U.S. 1032, 1050-51 (1984) (requiring “egregious violations . . . that might

transgress notions of fundamental fairness and undermine the probative value of

the evidence obtained” to exclude evidence in a civil immigration proceeding), and

he was advised of his rights prior to the commencement of formal removal

proceedings, see 8 C.F.R. § 287.3(c); Samayoa-Martinez v. Holder, 558 F.3d 897,

901-02 (9th Cir. 2008) (holding that the advisal requirements under section

287.3(c) do not attach until formal proceedings are initiated by filing the notice to

appear in immigration court). See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and substantial prejudice to prevail on a due process claim).

We are not persuaded by Camarena-Sanchez’s contention that 5 U.S.C.

§ 555(b) afforded him a right to counsel at the time of his statement at the border,

where he cites no authority to support his contention. Cf. 8 C.F.R. § 292.5(b);

Gonzaga-Ortega v. Holder, 736 F.3d 795, 804 (9th Cir. 2013) (as amended) (citing

8 C.F.R. § 292.5(b) to hold that the petitioner, a lawful permanent resident, did not

have a right to counsel at secondary inspection when seeking admission to the

2 08-70272 United States); Ardestani v. INS, 502 U.S. 129, 134 (1991) (subsequent to the

implementation of the Immigration and Nationality Act, the Administrative

Procedure Act no longer governs deportation proceedings).

To the extent Camarena-Sanchez requests review of the IJ’s determination

regarding the lack of sworn statement, we do not reach this contention. See

Maldonado v. Lynch, 786 F.3d 1155, 1160 (9th Cir. 2015) (en banc) (review is

limited to the grounds upon which the BIA relied for its decision).

We deny the request for EAJA fees as moot.

PETITION FOR REVIEW DENIED.

3 08-70272