Jose Garcia-Torres v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, STEVEN M. COLLOTON and SUSAN RICHARD NELSON. Susan Richard Nelson, Authoring Judge (PUBLISHED) [3844163] [10-2307]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2307
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Jose Garcia-Torres,

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Petitioner,
v.
Eric Holder, Attorney General of
the United States,
Respondent.

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

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Submitted: March 15, 2011
Filed: October 28, 2011
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Before LOKEN and COLLOTON, Circuit Judges, and NELSON,* District Judge.
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NELSON, District Judge.
Jose Garcia-Torres, a native and citizen of Mexico who entered the United
States in February 1997 without admission or parole, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) that dismissed his appeal,

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The Honorable Susan Richard Nelson, United States District Court for the
District of Minnesota, sitting by designation.

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finding that the evidence of his alienage was admissible and that removal was proper
despite the hardship he alleged it would impose on his family.
We deny the petition.
I.

BACKGROUND
At about 4:00 a.m. on August 25, 2007, St. Charles, Missouri police officers,
acting on a tip that alcohol was being consumed in violation of a local ordinance
prohibiting drinking after 1:30 a.m., entered, without a warrant, a restaurant named
“Mexico on Main.” Inside they arrested several individuals, including Petitioner, a
co-owner of the restaurant, and Jorge Angel Puc-Ruiz. But the local prosecutor later
found no probable cause for the arrest and charges were never filed against them.
Nevertheless, in the interim, they were transferred to the custody of
Immigration and Customs Enforcement (“ICE”). As ICE officer Jeffrey Othic
explained, ICE does “a lot of outreach” with local law enforcement agencies, which
“routine[ly]” notify ICE when they suspect that individuals they have in custody
might be foreign nationals without evidence of their immigration status. (App. at 95,
116, 135.) Othic then interviewed Petitioner and Puc-Ruiz and prepared a Form I-213
for each. Othic testified that Petitioner’s answers were given freely. As Petitioner
and Puc-Ruiz appeared to be in the U.S. illegally, ICE issued immigration detainers
and Notices to Appear in removal proceedings.
Petitioner moved to suppress the I-213 and all evidence obtained as a result of
the arrest. He also moved to terminate the proceedings, contending that the
Government failed to prove alienage and removability. The Immigration Judge (IJ)
denied both motions. Petitioner then applied for cancellation of removal and, in the
alternative, voluntary departure. The IJ also denied those applications. Petitioner
appealed to the BIA, which dismissed his appeal. This petition followed.

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II.

DISCUSSION
A.
Scope of Review
The appeal from the BIA’s decision implicates two separate rulings by the IJ:
(1) the denial of Petitioner’s application to suppress evidence of his alienage, and (2)
the denial of his application to cancel the order for his removal. Appellate review of
the second issue, however, is confined by statute to only “constitutional claims or
questions of law,” and does not extend to discretionary decisions by the BIA. 8
U.S.C. § 1252(a)(2)(A); Puc-Ruiz v. Holder, 629 F.3d 771, 777 (8th Cir. 2010).
B.
Exclusionary Rule in Alien Removal Proceedings
Although the Government bears the burden of establishing removability by
clear and convincing evidence, it “must only show identity and alienage; then the
burden shifts to the alien to prove he is lawfully present in the United States pursuant
to a prior admission.” Puc-Ruiz, 629 F.3d at 781. Petitioner first argues that he may
not be legally removed from the United States because certain evidence of his
alienage was obtained through “an egregious, bad faith violation of the Fourth
Amendment prohibition against unreasonable searches and seizures.” (Br. at 11.) He
claims that only the local officers’ actions, not any taken by ICE, violated the Search
and Seizure Clause. He also separately claims that admitting the evidence would
violate his “Fifth Amendment due process right to a fundamentally fair removal
hearing.” (Id.)
1.
Standard of Review
In removal actions, we apply a de novo standard of review to issues of law “but
accord substantial deference to the BIA’s interpretation of immigration statutes and
regulations.” Puc-Ruiz v. Holder, 629 F.3d 771, 777 (8th Cir. 2010). With respect to
the agency’s findings of fact, we review for substantial evidence under the governing
statutory standard: “‘[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Id.
(quoting Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir. 2007)).
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2.
Application Of The Exclusionary Rule
In Immigration and Naturalization Service v. Lopez-Mendoza, the Supreme
Court applied a balancing test to determine whether the exclusionary rule, which is
generally applied only in criminal proceedings, should also apply in civil deportation
proceedings. 468 U.S. 1032, 1040-50 (1984). Applying the “framework,” “imprecise
as the exercise may be,” set forth in United States v. Janis, 428 U.S. 433 (1976), the
Court analyzed various factors to weigh “the likely social benefits of excluding
unlawfully seized evidence against the likely costs.” Id. at 1041. Although the
factors that weighed against applying the exclusionary rule in civil tax proceedings
in Janis might not apply in the deportation context, the Court reached “the same
conclusion as in Janis” based on “several other factors [that] significantly reduce the
likely deterrent value of the exclusionary rule in a civil deportation proceeding.” Id.
at 1043.1 The Court concluded that the exclusionary rule does not apply “in an INS
civil deportation hearing” conducted solely to determine if the alien is eligible to

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In Janis, although a state law enforcement officer seized evidence
unconstitutionally, the Supreme Court declined to apply the exclusionary rule in a
separate federal civil tax proceeding because “two factors” rendered any deterrence
provided by that rule merely marginal in the federal civil proceeding: (1) “the local
law enforcement official is already punished by the exclusion of the evidence in the
state criminal trial,” and (2) “the evidence is also excludable in the federal criminal
trial.” 428 U.S. at 448. The Court thus articulated the “inter-sovereign rule”–that
“the additional marginal deterrence provided by forbidding a different sovereign from
using the evidence in a civil proceeding surely does not out weigh the costs to society
of extending the rule to that situation.” Id. at 454-55. In Lopez-Mendoza, the Court
confronted no similar inter-sovereign issue because the aliens were arrested by INS
agents, and further recognized that deportation proceedings are rarely accompanied
even by federal criminal proceedings. 468 U.S. at 1042-43 (acknowledging that
“only a very small percentage of arrests of aliens . . . lead to [federal] criminal
prosecutions”).
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remain in the U.S., not to criminally punish any unlawful entry, even though that is
a crime.2
In Lopez-Mendoza, the Court cautioned, however, that it was not dealing “with
egregious violations of Fourth Amendment or other liberties that might transgress
notions of fundamental fairness and undermine the probative value of the evidence
obtained.” 468 U.S. at 1051. Rather, it faced the issue of “the exclusion of credible
evidence gathered in connection with peaceful arrests by INS officers.” Id. This
Court has expressed doubt whether even an egregious violation by state or local
officers could justify exclusion in a federal immigration proceeding, Lopez-Gabriel
v. Holder, 653 F.3d 683, 686 (8th Cir. 2011), but the government does not raise that
point here, so we need not decide it. Cf. Janis, 428 U.S. at 459-60.
Assuming for the sake of analysis that an egregious constitutional violation by
local officers could justify exclusion of evidence in a federal immigration proceeding,
there is no basis for exclusion in this case. Here, the local police officers entered the
premises acting on a tip that a liquor ordinance was being violated. Petitioner points
to nothing more than a warrantless entry of business premises and arrest, mere
garden-variety error, if a Fourth Amendment violation at all. He contends that he
“was apprehended while inside a restaurant which he co-owned” by officers who

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Because we likewise face only a civil deportation action, cases relied upon by
Petitioner such as United States v. Flores-Sandoval, 422 F.3d 711 (8th Cir. 2005), and
United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001), are not relevant as
they were criminal actions brought to punish violations of the law prohibiting illegal
reentry after deportation.
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entered it “without a warrant and without [his] consent.” (Br. at 20; accord id. at 22.)3
But there is no evidence of any “egregious conduct.”4
In sum, even assuming that the search and seizure here constituted a violation
of the Fourth Amendment, any such violation is not “egregious.” In addition to his
Fourth Amendment argument, Petitioner also alleges a violation of the Due Process
Clause of the Fifth Amendment, claiming that he was denied a “fundamentally fair
removal hearing.” But his due process claim simply reiterates his Fourth Amendment
claim that “[l]aw enforcement officers entered [the] establishment without a warrant
and without the consent of Mr. Garcia-Torres.” (Br. at 20; id. at 24 (premising his
Fifth Amendment argument on “the same reasons that the above actions of law
enforcement were so egregious as to require suppression under the Fourth
Amendment”); id. at 25 (asserting that violation of Fourth Amendment by admitting
purportedly excludable evidence “also violated” his Fifth Amendment rights).) All
claims of an unconstitutional search or seizure must be addressed solely in terms of
the Fourth Amendment, not the “fundamental fairness” requirement “under a
‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 388, 395
(1989). Accord County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)
(reiterating that “substantive due process analysis is therefore inappropriate” where
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Petitioner also argues that the officers confirmed that the establishment’s
liquor license was solely in his wife’s name but that he was arrested anyway. But this
is irrelevant insofar as the tip on which the officers had acted was that “the restaurant
was serving alcohol in violation of a municipal ordinance.” 629 F.3d at 775.
4

We decline to adopt the Ninth Circuit’s standard that Petitioner advocates, that
is, that an “egregious violation” is nothing more than a “bad faith” violation, and that
such bad faith exists simply where “a reasonable officer should have known that the
conduct at issue violated the Constitution.” (Br. at 19 (citing Gonzalez-Rivera, 22
F.3d 1441, 1447-48 (9th Cir. 1994).) Such a standard would likely eviscerate LopezMendoza insofar as the Fourth Amendment prohibits only “unreasonable” searches
and seizures and the Ninth Circuit’s standard applies whenever “a reasonable officer
should have known” his conduct was illegal.
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a claim “is ‘covered by’ the Fourth Amendment”). Here, Petitioner’s due process
arguments are nothing more than claims that fall squarely within the ambit of the
Fourth Amendment. Thus, any evidence that ICE obtained, by virtue of Petitioner’s
arrest by local officers, was admissible and sufficient to establish Petitioner’s alienage
and removability.
C.
Cancellation of Removal
Petitioner also argues that even if the evidence at issue is admissible and
establishes that he is subject to removal, the BIA erred by not granting his application
for cancellation of removal under 8 U.S.C. § 1229b. An alien otherwise subject to
deportation may obtain a cancellation of removal if he shows that: (1) he has been
physically present in the U.S. for at least ten years; (2) he has been a person of “good
moral character”; (3) he has not been convicted of certain immigration offenses; and
(4) his “removal would result in exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1) (emphasis
added). Here, Petitioner argues only that his removal would cause hardship for his
wife and infant son. In particular, he contends that the BIA applied an incorrect legal
standard in assessing the hardships his wife and child would face if he were removed
to Mexico.
But “‘no court shall have jurisdiction to review ... any judgment regarding the
granting of relief under section ...1229b.’” Gomez-Perez v. Holder, 569 F.3d 370,
372 (8th Cir. 2009) (quoting 8 U.S.C. § 1252(a)(2)(B)). Courts may, however, review
“constitutional claims or questions of law raised upon a petition for review.” Id.
(quoting 8 U.S.C. § 1252(a)(2)(D)). In short, although we lack “jurisdiction to review
the discretionary denial of cancellation of removal under § 1229b,” we have
“jurisdiction to review constitutional claims or questions of law.” Id. (quoting PinosGonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008)). We have cautioned “that
a petitioner may not create jurisdiction by ‘cloaking an abuse of discretion argument
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in constitutional [or legal] garb.’” Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849
(8th Cir. 2008) (quoting Sabhari v. Mukasey, 522 F.3d 842, 844 (8th Cir. 2008)).
Petitioner alleges two errors: (1) “the Agency failed to cognize the hardship
caused by [Petitioner’s son] being completely unable to see his mother if [Petitioner]
were removed;” and (2) “the Agency considered the other hardships presented only
individually, rather than cumulatively.” (Br. at 31.) With respect to the second
alleged error, Petitioner contends that the BIA “did not make a mere mistake in
balancing the evidence; rather, the Agency applied an incorrect legal standard by
failing to account for the cumulative effect of the hardships presented.” (Br. at 28.)
The Government contends that Petitioner is seeking to evade the prohibition against
appellate review of this discretionary decision by recasting his evidentiary arguments
as presenting issues of law. We agree that this Court lacks jurisdiction to review the
BIA’s hardship determination because, while Petitioner attempts to present his issues
as questions of law, the hardship determination actually constitutes a discretionary
decision barred from appellate review.
Accordingly, we deny the petition.
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