Lidia Gamez-Lopez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2020
• Docket: 16-71119
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LIDIA ISABEL GAMEZ-LOPEZ; JENNY No. 16-71119 MIROSLAVA ESTEVES SILVA, Agency Nos. A088-447-438 Petitioners, A088-447-439

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

Respondent.

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

Submitted September 14, 2020** San Francisco, California

Before: BADE and BUMATAY, Circuit Judges, and MÁRQUEZ,*** District Judge.

Lidia Isabel Gamez-Lopez and Jenny Miroslava Esteves Silva (collectively,

“Petitioners”), who are natives and citizens of Mexico, petition 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 Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. decision by the Board of Immigration Appeals (“BIA”) affirming an Immigration

Judge’s (“IJ”) removal order. The IJ’s finding of removability was based on an

interim decision denying Petitioners’ motion to suppress evidence of alienage

obtained by federal law enforcement agents during the execution of a criminal search

warrant at Petitioners’ apartment. We review the BIA’s factual findings for

substantial evidence and its legal conclusions de novo. See Salim v. Lynch, 831 F.3d

1133, 1137 (9th Cir. 2016). We have jurisdiction under 8 U.S.C. § 1252, and we

deny the petition for review.

1. “Where, as here, the BIA has reviewed the IJ’s decision and

incorporated portions of it as its own, we treat the incorporated parts of the IJ’s

decision as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).

We agree with the BIA that suppression was not required under the Fourth

Amendment. Under the circumstances, the agents used reasonable force when they

broke through Petitioners’ apartment door with guns drawn after knocking and

announcing themselves as law enforcement agents. See Graham v. Connor, 490 U.S.

386, 396–97 (1989). Furthermore, the BIA correctly concluded that reasonable

suspicion was not required to justify detaining Petitioners while the search warrant

was being executed. See Muehler v. Mena, 544 U.S. 93, 98–102 (2005); Michigan

v. Summers, 452 U.S. 692, 705 (1981). This is so even though the search warrant did

not seek evidence of crimes involving violence. See Dawson v. City of Seattle, 435

2 16-71119 F.3d 1054, 1065–70 (9th Cir. 2006).

Substantial evidence supports the agency’s determination that the detention

and questioning of Petitioners did not prolong the search of their residence.

Petitioner Gamez-Lopez confirmed that, after she produced two of the three

documents named in the search warrant, the agents continued to look for the third

document – a letter from the Social Security Administration. In total, the detention

lasted only 40 to 60 minutes.

2. We also agree with the BIA that the agents’ actions were not so coercive

as to violate the Fifth Amendment. Petitioners were detained and questioned for less

than an hour. During this time, Petitioners were seated in their apartment within

eyesight of each other. There is no indication Petitioners were handcuffed or

otherwise restrained, and they were not yelled at or berated. There were no weapons

pointed at them while they were questioned. Petitioners do not allege that the agents

used or threatened to use physical force, denied Petitioners food or drink, or made

threats or improper promises. Under these circumstances, Petitioners have not

established that their Fifth Amendment rights were violated. See Gonzaga-Ortega v.

Holder, 736 F.3d 795, 804 (9th Cir. 2013).

3. For the same reasons, suppression was not warranted for regulatory

violations. The first regulation provides that an agent may question an individual

regarding her immigration status only if the agent “has a reasonable suspicion, based

3 16-71119 on specific articulable facts, that the person being questioned is, or is attempting to

be, engaged in an offense against the United States or is an alien illegally in the

United States.” 8 C.F.R. § 287.8(b)(2). The agents had reasonable suspicion to detain

and question Petitioners because they hid in their bathroom when law enforcement

agents came to execute a criminal search warrant. The second regulation prohibits

“[t]he use of threats, coercion, or physical abuse . . . to induce a suspect to waive his

or her rights or to make a statement.” Id. § 287.8(c)(2)(vii). The agents did not use

threats, abuse, or coercion to induce Petitioners to waive their rights or make a

statement.

PETITION DENIED.

4 16-71119