Pedro Cervantes-Cuevas v. Immigration & Naturalization Service

797 F.2d 707, 1985 U.S. App. LEXIS 26392
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 10, 1985
Docket84-7592
StatusPublished
Cited by8 cases

This text of 797 F.2d 707 (Pedro Cervantes-Cuevas v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedro Cervantes-Cuevas v. Immigration & Naturalization Service, 797 F.2d 707, 1985 U.S. App. LEXIS 26392 (9th Cir. 1985).

Opinions

ALARCON, Circuit Judge.

Petitioner Pedro Cervantes-Cuevas seeks review of the decision of an immigration judge, affirmed by the Board of Immigration Appeals, finding petitioner deportable under 8 U.S.C. § 1251(a)(2) for entry without inspection. This court has jurisdiction under 8 U.S.C. § 1105a(a). Reversal is sought on the ground that the immigration judge erred in denying petitioner’s motion to suppress evidence of the statements he made following his detention by agents of the United States Border Patrol. We affirm.

I. PERTINENT FACTS

At the time of the hearing before the immigration judge, petitioner was a 38 year-old married male alien, who was a citizen of Mexico. He entered the United States from Mexico during April of 1977, without submitting himself for inspection.

Petitioner was detained and subsequently arrested on March 18, 1982. Prior to being detained, petitioner was driving on Highway 12, near Wapato, Washington during a time when the United States Border Patrol was engaged in an operation checking establishments and places where undocumented aliens were likely to congregate. This operation was based upon reports received from informants, Border Patrol agents, and local law enforcement officers that the Wapato area of the Yakima Valley was “highly populated” with undocumented aliens from Mexico. In addition, in the course of their investigation, the Border Patrol agents had observed that when officers in marked vehicles approached housing which contained illegal aliens, some persons in the vicinity would leave in motor vehicles. Information concerning the fact that such persons had departed was relayed over the radio by surveillance officers in unmarked cars to agents who would detain persons who stopped their cars and fled on foot or appeared to speed up after passing Border Patrol vehicles. Approximately 500 undocumented aliens were arrested by the Border Patrol in the Yakima Valley during the week that petitioner was detained and then arrested.

The uncontradicted evidence showed that as the petitioner approached a Border Patrol vehicle parked next to a pick-up truck, he slowed to ten miles per hour, and then speeded up to forty-five miles per hour. Petitioner was followed by a Border Patrol vehicle. He stopped his car when the flashing lights were turned on.

After the petitioner was stopped, he was asked to show any documents establishing that he was lawfully in the United States. Instead of complying with this request, the petitioner handed the agents a G-28 Notice of Appearance of Attorney. The petitioner was then arrested. In a later conversation with an agent of the Border Patrol, the petitioner stated that he originally entered the United States from Mexico without inspection. These statements were included in a Form 1-213 report. >

In his motion to suppress his statements, petitioner contended that the detention and arrest was unlawful because of the “lack of specific, articulable facts supporting respondent’s arrest, interrogation and confinement in jail pursuant to U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] (1975).”

Petitioner made no contention before the immigration judge that the agent’s conduct was “egregious” or that his statements were coerced, made under duress, or were otherwise involuntary.

Petitioner submitted an affidavit in support of his motion to suppress the statements obtained following his arrest containing the following allegations: As he was driving to work on Highway 12 at 6:45 a.m. on March 18, 1982, petitioner saw a stalled pickup truck on the roadway. He slowed his vehicle to 10 miles per hour to go around the truck. He observed a Border Patrol vehicle behind the pick-up truck. He did not turn his head to look at the Border Patrol vehicle. He resumed his speed of forty-five miles per hour.

[709]*709The immigration judge concluded that an experienced Border Patrol agent would reasonably suspect that the petitioner was an alien based on the following facts: (1) other agents and local law enforcement officers had reported through official channels that many undocumented aliens were leaving the buildings in the area of the arrest; (2) some aliens were fleeing their housing in the area in automobiles as others were approached or being questioned; and (3) the petitioner’s car slowed down and then increased its speed as it drove away after observing a Border Patrol vehicle stopped behind a pick-up truck. Because it was his view that the record contained sufficient articulable facts to warrant stopping the petitioner to determine whether he was an alien and if he was lawfully in the United States, the immigration judge concluded that the arrest was lawful.

Petitioner filed a timely appeal with the Board of Immigration Appeals (hereinafter the Board). Petitioner’s notice of appeal to the Board stated that the arrest was illegal in that the Border Patrol agents had violated the decision of the Supreme Court in Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). He did not contend that the conduct of the Border Patrol agents was “egregious” or that his statement was made involuntarily. The Board concluded that the arrest was lawful because the record contained sufficient articulable facts to support a reasonable suspicion that the petitioner was an undocumented alien prior to his detention, as required by Brignoni-Ponce. Petitioner’s appeal was dismissed by the Board.

II. ISSUES ON APPEAL

The issues presented by this appeal can be summarized as follows:

One. Prior to directing petitioner to stop his vehicle, were the Border Patrol agents aware of specific, articulable facts that warranted a reasonable suspicion that the car contained aliens illegally residing in the United States?

Two. Does the exclusionary rule apply to civil deportation proceedings where the record shows that there were no specific articulable facts to justify a reasonable suspicion, prior to detention, that the petitioner was an alien illegally in this country?

Three. Should the decision of the Supreme Court in INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) be applied retroactively to conduct of Border Patrol agents which occurred prior to its effective date?

Four. Was the probative value of the evidence obtained from the petitioner undermined by “egregious” conduct of the arresting officers?

A. Presence of Articulable Facts and Reasonable Suspicion

The question of the appropriate standard of review applicable to the Board’s finding that the Border Patrol agent had a founded suspicion for stopping petitioner is unclear in this circuit. United States v. Magana, 769 F.2d 549, 550-51 (9th Cir.1985). Like the panel in Magana,

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797 F.2d 707, 1985 U.S. App. LEXIS 26392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedro-cervantes-cuevas-v-immigration-naturalization-service-ca9-1985.