Ismael Cazares Cobian v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2019
• Docket: 14-70701
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISMAEL CAZARES COBIAN, No. 14-70701

Petitioner, Agency No. A077-369-673

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 Ismael Cazares Cobian 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 Cazares

* 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). Cobian’s petition for review. We also deny Cazares Cobian’s motion to remand to

the BIA.

Cazares Cobian is a native and citizen of Mexico and a legal permanent

resident of the United States. In 2009, when Cazares Cobian was trying to cross

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

upon questioning, Cazares Cobian 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).

Cazares Cobian 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 Cazares Cobian 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).

Cazares Cobian 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. Cazares Cobian’s

statements during his questioning at secondary inspection were admissible in

subsequent immigration proceedings. Because Cazares Cobian had not yet been

2 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 Cazares Cobian’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.