Esteban Nolasco-Gaspar v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : The petition for review is DENIED. Decision not for publication. David W. McKeague and Raymond M. Kethledge, Circuit Judges; William O. Bertelsman, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

Case: 13-4484

Document: 23-2

Filed: 11/03/2014

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0832n.06
No. 13-4484

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBORAH S. HUNT, Clerk

ESTEBAN NOLASCO-GASPAR,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Nov 03, 2014

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: MCKEAGUE and KETHLEDGE, Circuit Judges; BERTELSMAN, District
Judge.

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PER CURIAM. Esteban Nolasco-Gaspar, a citizen of Guatemala, petitions through
counsel for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from a decision of an immigration judge (IJ) denying his motion to suppress evidence and
ordering his removal to Guatemala.
Nolasco-Gaspar accompanied a friend to a court hearing one day. After the hearing,
while his friend waited in line to pay a fine, Nolasco-Gaspar took a seat in the hallway. Federal
immigration officials approached his friend and arrested him on the basis of an outstanding order
of removal. The officials then asked Nolasco-Gaspar for his identification and immigration
status. Nolasco-Gaspar twice claimed to have legal status, but when the officers told him that
did not check out, he admitted to having entered this country illegally years earlier. He was then

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The Honorable William O. Bertelsman, United States District Judge for the Eastern
District of Kentucky, sitting by designation.

Case: 13-4484

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No. 13-4484
Nolasco-Gaspar v. Holder
also arrested and placed in removal proceedings. Nolasco-Gaspar did not seek any form of relief
from removal, but filed a motion to suppress his statements to the immigration officers, alleging
that the officers had violated his Fourth and Fifth Amendment rights and federal regulations.
The IJ denied the motion and subsequently ordered Nolasco-Gaspar’s removal to Guatemala.
The BIA agreed with the IJ’s decision and dismissed Nolasco-Gaspar’s appeal. Nolasco-Gaspar
reasserts his arguments before this court.
The exclusionary rule does not apply in immigration proceedings absent an egregious
violation of the Fourth Amendment. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984).
Nolasco-Gaspar cites Almeida-Amaral v. Gonzales, 461 F.3d 231, 235-37 (2d Cir. 2006), as
authority for the proposition that a stop based solely on race is such an egregious violation.
However, in that case, the court found that there was no evidence that the petitioner’s stop was
based solely on his race. Here, Nolasco-Gaspar had accompanied his friend to court. The friend
had an outstanding order of deportation and was arrested by immigration officers who then asked
Nolasco-Gaspar for his identification and proof of immigration status. Thus, it appears that
Nolasco-Gaspar’s association with the arrested friend was likely the basis for the officers’
questions, and there is no evidence that he was questioned solely because he is Hispanic.
Similarly, we found no violation in United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir.
2005), where the defendant and his companions were asked for identification while in a hotel
room where drugs were being used and guns were found, and he was not merely the target of a
random attempt to determine whether he was an illegal alien. Accordingly, we agree with the
BIA’s conclusion that no egregious violation of the Fourth Amendment was established in this
case.

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Case: 13-4484

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Nolasco-Gaspar also claims that the immigration officers violated his Fifth Amendment
rights and 8 C.F.R. § 287.8(c)(2)(vii) by using “threats, coercion or physical abuse.”

See

Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir. 2006). However, Nolasco-Gaspar’s affidavit
only stated that the officers were “aggressive” and not that he was threatened, coerced, or
physically abused. Therefore, we agree that the motion to suppress was properly denied on this
ground as well.
The petition for review is accordingly denied.

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