Jose Diaz-Espinoza v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2018
• Docket: 15-72024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS DIAZ-ESPINOZA, No. 15-72024

Petitioner, Agency No. A078-018-328

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Jose Luis Diaz-Espinoza, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his motion to suppress evidence and

terminate removal proceedings, and ordering him removed. Our jurisdiction is

* 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). governed by 8 U.S.C. § 1252. We review de novo the denial of a motion to

suppress and constitutional claims. Martinez-Medina v. Holder, 673 F.3d 1029,

1033 (9th Cir. 2011). We deny in part and dismiss in part the petition for review.

The agency did not err or violate due process in denying Diaz-Espinoza’s

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

demonstrate that his statements to immigration officials while in criminal custody

were 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), and Samayoa-Martinez v. Holder, 558 F.3d

897, 901-02 (9th Cir. 2009), forecloses his contention that his statements were

unconstitutionally obtained in violation of 8 C.F.R. § 287.3(c). See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to

prevail on a due process claim).

To the extent Diaz-Espinoza contends the agency failed to advise him of his

rights in violation of 8 C.F.R. § 287.3(c), the record does not support this

contention, where the requisite advisals were listed on the Notice to Appear, which

the government served on Diaz-Espinoza before formal proceedings commenced.

2 15-72024 To the extent Diaz-Espinoza contends 8 C.F.R. §287.3(c) is unconstitutional,

he has waived this contention, because he advances no argument to support it. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (“Issues raised in

a brief that are not supported by argument are deemed abandoned.”)

We lack jurisdiction to consider Diaz-Espinoza’s request for prosecutorial

discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 15-72024