FILED NOT FOR PUBLICATION JAN 25 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTANA PORTILLO-FLORES; No. 17-71406 DAYRON CAMILO FLORES- PORTILLO, Agency Nos. A208-687-624 A208-687-625 Petitioners,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 17, 2020 San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges. Concurrence by Judge BERZON
Santana Portillo-Flores (Portillo) and her young son Dayron Flores-Portillo
petition for review of Board of Immigration Appeal’s (BIA) dismissal of their
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal contending that the Immigration Judge (IJ) should have granted their
motion to suppress evidence, allegedly obtained after the government egregiously
violated the Fourth Amendment, and terminated proceedings.
Petitioners were arrested after being found walking near the border in the
Rio Grande Valley. The next day, after being transported to the border patrol
station, Portillo acknowledged Petitioners’ Salvadoran nationality and their illegal
entry. At the removal hearing, Respondent introduced Portillo’s Salvadoran
identification card, her son’s Salvadoran birth certificate, and the Forms I-213
describing the circumstances of the arrest. Petitioners’ motion to suppress was
granted with respect to the child’s birth certificate but otherwise denied. The BIA
affirmed the order denying the motion to suppress and to terminate proceedings.
In immigration proceedings, the exclusionary rule applies to evidence
obtained in violation of the Fourth Amendment only when the violation is
egregious. See, e.g., Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018).
Petitioners bear the burden of making a prima facie showing of an egregious
Fourth Amendment violation. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA
1988).
In support of their motion to suppress, Petitioners provided a declaration by
Portillo that, when confronted by the Customs and Border Patrol Agent, she did not
2 admit alienage and was not asked about alienage or illegal entry. On this basis
Petitioners contend their arrest must have resulted in an egregious violation of their
Fourth Amendment rights. There is no requirement that those particular questions
be asked before an arrest for unlawful entry, however, and as the BIA observed,
the declaration provides no other information about interactions between
Petitioners and the agents prior to the arrest. The declaration attests to an arrest
next to the border where the Petitioners were not told the grounds for the arrest.
Cases where we have ordered exclusion based on egregious Fourth Amendment
violations involved more than that. See, e.g., Lopez-Rodriguez v. Mukasey, 536
F.3d 1012, 1018 (9th Cir.2008) (entry into home). The declaration, therefore, does
not establish a prima facie case of an egregious Fourth Amendment violation.
Petitioners also contend that the IJ and BIA should not have relied on the
Forms I-213 because they were not entitled to the usual presumption of regularity
afforded government records. Petitioners point to a lack of particularity and the
use of boilerplate phrases, but do not cite any authority to support an inference that
the Forms were inadmissible or that they establish any violation of constitutional
rights. Moreover, the Forms contained information specific to these Petitioners,
including names, dates, and the coordinates of the relatively isolated location near
3 the border where Petitioners were found. There is no reason to order them
suppressed.
Petitioners separately appeal the BIA’s denial of their motion to strike
Portillo’s identification card. Petitioners argue that the identification card should
be stricken because it was not certified and translated pursuant to regulations. For
the exclusionary rule to apply on the basis of a regulatory violation, the violation
must prejudice the petitioners. Sanchez, 904 F.3d at 649. As the BIA correctly
held, the admission of the identification card did not prejudice the Petitioners
because it was not necessary to establish alienage.
Petitioners also claim Portillo’s statements should be suppressed because
they were made after she and her son had been held for a day in harsh conditions
and threatened with deportation. The Petitioners contend that the statements
should have been excluded as involuntary in violation of their Fifth Amendment
rights. Petitioners provide few details about the confinement and no information
about the nature of the interrogation that would suggest the conditions caused
Portillo’s will to be overborne for purposes of the Fifth Amendment’s exclusionary
rule. See Mincey v. Arizona, 437 U.S. 385, 386 (1978).
Petitioners argued for the first time on appeal to the BIA that the Notice to
Appear failed to list the correct immigration court address. Such failure does not
4 strip the immigration court of jurisdiction. Aguilar Fermin v. Barr, 958 F.3d 887,
895 (9th Cir. 2020).
The Petitions for Review are DENIED.
5 Portillo-Flores v. Wilkinson, No. 17-71406 FILED BERZON, Circuit Judge, concurring: JAN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the memorandum disposition.
With respect to the Fourth Amendment issue, I agree that Portillo-Flores has
not made a prima facie showing of an egregious Fourth Amendment violation. But,
in my view, she has made a prima facie showing that the Border Patrol agents
lacked probable cause to arrest her. That lack of probable cause likely amounted to
a regulatory violation. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only
when the designated immigration officer has reason to believe that the person to be
arrested has committed an offense against the United States or is an alien illegally
in the United States.” (emphasis added)); Tejeda-Mata v. INS, 626 F.2d 721, 725
(9th Cir. 1980) (equating the phrase “reason to believe” with the constitutional
requirement of probable cause). “A successful prima facie showing of a regulatory
violation for evidentiary suppression purposes . . . entitle[s] the petitioner to a
remand for the government to rebut the petitioner’s showing.” Sanchez v. Sessions,
904 F.3d 643, 653 (9th Cir. 2018); see Matter of Barcenas, 19 I. & N. Dec. 609,
611 (BIA 1988).
But Portillo-Flores did not adequately raise the issue of a regulatory
violation before the Board of Immigration Appeals (“BIA”). And the BIA, unlike
the immigration judge, did not allude to the regulation in its opinion. Because our
1 panel cannot grant relief on an issue not exhausted before or considered by the
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FILED NOT FOR PUBLICATION JAN 25 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTANA PORTILLO-FLORES; No. 17-71406 DAYRON CAMILO FLORES- PORTILLO, Agency Nos. A208-687-624 A208-687-625 Petitioners,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 17, 2020 San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges. Concurrence by Judge BERZON
Santana Portillo-Flores (Portillo) and her young son Dayron Flores-Portillo
petition for review of Board of Immigration Appeal’s (BIA) dismissal of their
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal contending that the Immigration Judge (IJ) should have granted their
motion to suppress evidence, allegedly obtained after the government egregiously
violated the Fourth Amendment, and terminated proceedings.
Petitioners were arrested after being found walking near the border in the
Rio Grande Valley. The next day, after being transported to the border patrol
station, Portillo acknowledged Petitioners’ Salvadoran nationality and their illegal
entry. At the removal hearing, Respondent introduced Portillo’s Salvadoran
identification card, her son’s Salvadoran birth certificate, and the Forms I-213
describing the circumstances of the arrest. Petitioners’ motion to suppress was
granted with respect to the child’s birth certificate but otherwise denied. The BIA
affirmed the order denying the motion to suppress and to terminate proceedings.
In immigration proceedings, the exclusionary rule applies to evidence
obtained in violation of the Fourth Amendment only when the violation is
egregious. See, e.g., Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018).
Petitioners bear the burden of making a prima facie showing of an egregious
Fourth Amendment violation. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA
1988).
In support of their motion to suppress, Petitioners provided a declaration by
Portillo that, when confronted by the Customs and Border Patrol Agent, she did not
2 admit alienage and was not asked about alienage or illegal entry. On this basis
Petitioners contend their arrest must have resulted in an egregious violation of their
Fourth Amendment rights. There is no requirement that those particular questions
be asked before an arrest for unlawful entry, however, and as the BIA observed,
the declaration provides no other information about interactions between
Petitioners and the agents prior to the arrest. The declaration attests to an arrest
next to the border where the Petitioners were not told the grounds for the arrest.
Cases where we have ordered exclusion based on egregious Fourth Amendment
violations involved more than that. See, e.g., Lopez-Rodriguez v. Mukasey, 536
F.3d 1012, 1018 (9th Cir.2008) (entry into home). The declaration, therefore, does
not establish a prima facie case of an egregious Fourth Amendment violation.
Petitioners also contend that the IJ and BIA should not have relied on the
Forms I-213 because they were not entitled to the usual presumption of regularity
afforded government records. Petitioners point to a lack of particularity and the
use of boilerplate phrases, but do not cite any authority to support an inference that
the Forms were inadmissible or that they establish any violation of constitutional
rights. Moreover, the Forms contained information specific to these Petitioners,
including names, dates, and the coordinates of the relatively isolated location near
3 the border where Petitioners were found. There is no reason to order them
suppressed.
Petitioners separately appeal the BIA’s denial of their motion to strike
Portillo’s identification card. Petitioners argue that the identification card should
be stricken because it was not certified and translated pursuant to regulations. For
the exclusionary rule to apply on the basis of a regulatory violation, the violation
must prejudice the petitioners. Sanchez, 904 F.3d at 649. As the BIA correctly
held, the admission of the identification card did not prejudice the Petitioners
because it was not necessary to establish alienage.
Petitioners also claim Portillo’s statements should be suppressed because
they were made after she and her son had been held for a day in harsh conditions
and threatened with deportation. The Petitioners contend that the statements
should have been excluded as involuntary in violation of their Fifth Amendment
rights. Petitioners provide few details about the confinement and no information
about the nature of the interrogation that would suggest the conditions caused
Portillo’s will to be overborne for purposes of the Fifth Amendment’s exclusionary
rule. See Mincey v. Arizona, 437 U.S. 385, 386 (1978).
Petitioners argued for the first time on appeal to the BIA that the Notice to
Appear failed to list the correct immigration court address. Such failure does not
4 strip the immigration court of jurisdiction. Aguilar Fermin v. Barr, 958 F.3d 887,
895 (9th Cir. 2020).
The Petitions for Review are DENIED.
5 Portillo-Flores v. Wilkinson, No. 17-71406 FILED BERZON, Circuit Judge, concurring: JAN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the memorandum disposition.
With respect to the Fourth Amendment issue, I agree that Portillo-Flores has
not made a prima facie showing of an egregious Fourth Amendment violation. But,
in my view, she has made a prima facie showing that the Border Patrol agents
lacked probable cause to arrest her. That lack of probable cause likely amounted to
a regulatory violation. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only
when the designated immigration officer has reason to believe that the person to be
arrested has committed an offense against the United States or is an alien illegally
in the United States.” (emphasis added)); Tejeda-Mata v. INS, 626 F.2d 721, 725
(9th Cir. 1980) (equating the phrase “reason to believe” with the constitutional
requirement of probable cause). “A successful prima facie showing of a regulatory
violation for evidentiary suppression purposes . . . entitle[s] the petitioner to a
remand for the government to rebut the petitioner’s showing.” Sanchez v. Sessions,
904 F.3d 643, 653 (9th Cir. 2018); see Matter of Barcenas, 19 I. & N. Dec. 609,
611 (BIA 1988).
But Portillo-Flores did not adequately raise the issue of a regulatory
violation before the Board of Immigration Appeals (“BIA”). And the BIA, unlike
the immigration judge, did not allude to the regulation in its opinion. Because our
1 panel cannot grant relief on an issue not exhausted before or considered by the
BIA, I concur in the denial of the petition.
I note that, although Portillo-Flores apparently accepts that she bears the
burden to establish a prima facie violation of the Fourth Amendment, placing the
burden on petitioners to make a prima facie showing that probable cause was
lacking is problematic. In the criminal context, if a defendant brings a motion to
suppress challenging a warrantless search or seizure, “the government carries the
burden to bring the case within one of the exceptions to the warrant requirement.”
3A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 689
(West 4th ed. 2020 Update); see United States v. Hawkins, 249 F.3d 867, 872 (9th
Cir. 2001). If there is any initial burden on the defendant, it is slight: “once [the
defendant] demonstrates that a warrantless search or seizure occurred, the burden
shifts to the government to demonstrate a justification or exception to the warrant
requirement.” United States v. Guevara, 745 F. Supp. 2d 1039, 1043 (N.D. Cal.
2010) (Alsup, J.).
Here, the BIA places the burden on petitioners to establish a prima facie case
that probable cause was lacking, before requiring the government to state the
reasons underlying its probable cause determinations. See Matter of Barcenas, 19
I. & N. Dec. at 611. That is backwards, and saddles petitioners with guessing at the
government’s reasons for arresting them, and attempting to rebut those reasons,
2 before the government has even revealed them. In the regulatory context, Sanchez
avoided this anomaly by holding that the petitioner met his burden with regard to
the weaker “reasonable suspicion” standard by establishing not that reasonable
suspicion was in fact lacking, but that the government had “yet to offer specific and
articulable facts that would support the Coast Guard officers’ decision to detain
Sanchez on the basis of reasonable suspicion that he was unlawfully present in this
country or otherwise engaged in illegal activity.” 904 F.3d at 650–51 (emphasis
added).
But again, the validity of the BIA’s burden-shifting approach was not raised
before the agency, nor was it challenged before us. So I concur in denying the
petition.