Daniel Montes v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 17-70121
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL MATIAS MONTES, No. 17-70121

Petitioner, Agency No. A206-676-973

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Daniel Matias Montes, 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 decision denying his motion to suppress evidence and

terminate proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de

novo the denial of a motion to suppress, and claims of constitutional violations.

* 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). 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 Matias Montes’s

motion to suppress and terminate removal proceedings, where he did not

demonstrate that the evidence of alienage in the Form I-213 was 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); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring

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

The agency also did not err or violate due process by admitting the Form I-

213 into evidence, where it was probative, its admission was fundamentally fair,

and Matias Montes did not show that it contained inaccurate information or was

obtained by coercion. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012);

Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (“[I]nformation on an

authenticated immigration form is presumed to be reliable in the absence of

evidence to the contrary presented by the alien.”); Lata, 204 F.3d at 1246.

We reject Matias Montes’s contention that the BIA violated due process by

not addressing cross-examination of the preparer of the Form I-213, because he has

2 17-70121 failed to show prejudice. See Lata, 204 F.3d at 1246; see also Espinoza, 45 F.3d at

311 (the immigration judge was not required to permit cross-examination

of the Form I-213’s preparer absent evidence of unreliability). We also reject

Matias Montes’s additional contentions that the BIA failed to address all issues

raised on appeal or provide a reasoned explanation for its decision. See Najmabadi

v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA adequately

considered evidence and sufficiently announced its decision).

PETITION FOR REVIEW DENIED.

3 17-70121