Carlos Ortiz Becerra v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2021
• Docket: 17-70859
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ORTIZ BECERRA, No. 17-70859

Petitioner, Agency No. A078-103-644

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 20, 2020** Submission Vacated March 16, 2021 Resubmitted April 29, 2021 Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,*** District Judge.

Carlos Ortiz Becerra, a native and citizen of Mexico, petitions for review of a

* 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). *** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. reinstatement of removal order, and an immigration judge’s negative reasonable fear

determination. The petition is dismissed in part and denied in part.

1. Ortiz Becerra argues that the reinstatement order is invalid because the

government hasn’t established the existence of a prior removal order. See Morales-

Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (citing 8 U.S.C.

§ 1231(a)(5); 8 C.F.R. § 241.8) (reinstatement of removal requires there to be a prior

removal order in the first place). Ortiz Becerra’s argument relies on the fact that he

never signed the prior removal order as required by 8 C.F.R. § 235.3(b)(2)(i). But

we do not have jurisdiction to consider this claim. See Alvarado-Herrera v.

Garland, No. 18-70191, 2021 U.S. App. LEXIS 10492, at *14 (9th Cir. Apr. 13,

2021) (8 U.S.C. § 1252 limits collateral attacks on the validity of an expedited

removal order being reinstated to a few “narrow issues” that “must be raised in

habeas corpus proceedings”). Ortiz Becerra’s arguments do not implicate these

exceptions, and this is not a habeas corpus proceeding. Therefore, we dismiss this

portion of Ortiz Becerra’s petition for lack of jurisdiction.

2. We do not find any basis for suppressing Ortiz Becerra’s statements to

Immigration and Customs Enforcement officials based on alleged regulatory

violations. First, officers did not violate 8 C.F.R. § 287.8(c)(2)(iii), which requires

an officer to “[i]dentify himself or herself as an immigration officer.” The regulation

is temporally limited, only imposing a duty on officers “at the time of the arrest.”

2 See Torres v. Barr, 976 F.3d 918, 926 (9th Cir. 2020) (en banc) (the statutory phrase

“at the time” imposes a “temporal requirement” on the action at issue). Accordingly,

ICE officers did not need to identify themselves when they first made contact with

Ortiz Becerra or his daughter because, at that time, they were merely conducting a

knock-and-talk while looking for someone else.

Nor is Ortiz Becerra entitled to any relief for the alleged violation of 8 C.F.R.

§ 287.3(a), which requires an alien “be examined by an officer other than the

arresting officer.” Even assuming this regulation was violated, there is nothing to

suppress: Ortiz Becerra did not make any statement during the examination that was

used against him. Instead, he repeated the same statements he had already uttered

to the officers who conducted the knock-and-talk at his house. See Sanchez v.

Sessions, 904 F.3d 643, 649, 653 n.12 (9th Cir. 2018) (prejudice is required and the

fruit-of-the-poisonous-tree doctrine does not work backwards).

3. We also reject Ortiz Becerra’s argument that he is entitled to

suppression of the statements he made to officers at his house. There was no Fourth

Amendment violation—let alone an egregious one, as is required to apply the

exclusionary rule in civil immigration proceedings. Sanchez, 904 F.3d at 649;

Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994). Officers arrived at Ortiz

Becerra’s home with a search warrant for someone else who they thought would be

at that location. Ortiz Becerra’s adult daughter consented to them entering the home.

3 See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (“the

voluntary consent of a party who has authority over the premises renders the

warrantless entry of a person’s home by law enforcement personnel constitutionally

valid.”).

Nor is there any reason to think that the officers were engaged in a “ruse.”

Ortiz Becerra argues that officers deliberately misrepresented the nature of their

investigation by identifying themselves as “police” rather than as ICE agents. But

immigration agents are police. See Police, New Oxford American Dictionary (3d

ed. 2010) (“an organization engaged in the enforcement of official regulations in a

specified domain” such as “transit police”). Even if ICE agents are not technically

viewed as “police” under certain jurisdictions’ laws, as amici1 point out, describing

themselves as “police” is not a deliberate misrepresentation given the everyday

meaning of that term. And in any event, the officers were wearing visible ICE

badges, which would have identified them as immigration police specifically.

Ortiz Becerra also claims that his daughter remembers that officers told her a

different name than the name identified in the arrest reports as the subject of ICE’s

warrant. Based on this claim alone, we find no basis to conclude that ICE engaged

in an impermissible ruse. Cf. United States v. Bosse, 898 F.2d 113, 115 (9th Cir.

1 The ACLU of Southern California and the University of California, Irvine Immigrant Rights Clinic’s motion for leave to file a brief as amici curiae is GRANTED.

4 1990) (court found impermissible ruse entry when officer pretended to be state

licensing officer conducting routine inspection).

4. For the reasons explained in Alvarado-Herrera, we reject Ortiz

Becerra’s claim that the use of reasonable fear screenings violates the Fifth

Amendment’s Due Process Clause, 8 U.S.C. § 1231(a)(5), and § 2242 of the Foreign

Affairs Reform and Restructuring Act. 2021 U.S. App. LEXIS 10492, at *15–24.

5. Substantial evidence supports the IJ’s conclusion that Ortiz Becerra has

not shown a reasonable possibility of persecution because of a protected ground. See

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Ortiz Becerra relies

entirely on the 1998 murder of his cousin and threatening phone calls to his home as

evidence of persecution. But the IJ found that the murder of his cousin was random

gang violence. Nothing in the record casts this conclusion into doubt. Similarly, the

IJ permissibly concluded that the threats called in to his home in 1998 did not rise to

the level of persecution. See, e.g., Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th

Cir. 2005) (“most threats do not rise to the level of persecution”). Nothing in Ortiz

Becerra’s testimony suggests that these threats were targeting him specifically. In

fact, he told the asylum officer that the callers “never mentioned [his] name” but

simply asked to speak with “the man of the house.” Accordingly, substantial

evidence supports the IJ’s negative reasonable fear determination.

5 For the foregoing reasons, we DISMISS in part, and DENY in part Ortiz

Becerra’s petition.