Eloy Meza Garcia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2019
• Docket: 13-74141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELOY MEZA GARCIA, No. 13-74141

Petitioner, Agency No. A088-258-508

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

Respondent.

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

Submitted September 12, 2019** San Francisco, California

Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.

Petitioner Eloy Meza Garcia appeals the Board of Immigration Appeals’

(“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal. We

have jurisdiction under 8 U.S.C. § 1252(a). Reviewing de novo, Altamirano v.

Gonzales, 427 F.3d 586, 591 (9th Cir. 2005), we deny Meza Garcia’s petition for

* 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). review. We also deny Meza Garcia’s motion to remand to the BIA.

Meza Garcia is a native and citizen of Mexico and a legal permanent

resident of the United States. In 2008, when Meza Garcia was trying to cross the

border in his car, authorities asked him to go to secondary inspection. There, upon

questioning, Meza Garcia admitted to attempting to smuggle a passenger in his car

into the United States without proper documents. He contends that, during his

questioning, the immigration officer did not advise him of his rights under 8 C.F.R.

§ 287.3(c).

Meza Garcia seeks remand to the BIA for consideration of cancellation of

removal or administrative closure, but he did not request either in his

administrative proceedings. For this reason, we conclude that Meza Garcia did not

exhaust these claims and that we lack subject matter jurisdiction to consider them.

See Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019); Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).1

Meza Garcia also petitions for review of the BIA’s decision, contending that

the statements he made during questioning at secondary inspection should have

been suppressed because he wasn’t advised of his rights. Meza Garcia’s

1 Although the Government’s opposition to Meza Garcia’s motion to remand does not rely on exhaustion, “[o]ur precedent . . . has squarely held that issue exhaustion is a jurisdictional requirement.” See Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (citing Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013)).

2 statements during his questioning at secondary inspection were admissible in

subsequent immigration proceedings. Because Meza Garcia had not yet been

placed in formal immigration proceedings, the immigration officials were not

required under 8 C.F.R. § 287.3(c) to inform him of his right to counsel. Samayoa-

Martinez v. Holder, 558 F.3d 897, 901–02 (9th Cir. 2009).

The admission of Meza Garcia’s statements did not violate his Fifth

Amendment right against self-incrimination. Noncitizens are entitled to the same

protections against self-incrimination as citizens. United States v. Balsys, 524 U.S.

666, 671 (1998). However, an official’s failure to give a Miranda-style warning

does not preclude the use of statements obtained during a custodial interrogation in

a removal proceeding. See, e.g., United States v. Solano-Godines, 120 F.3d 957,

960 (9th Cir. 1997).

PETITION DISMISSED IN PART AND DENIED IN PART.

MOTION TO REMAND DENIED.