United States v. Ismael Tamayo-Baez

Filing

OPINION FILED - THE COURT: Roger L. Wollman, James B. Loken and Kermit E. Bye AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [4387024] [15-2063]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2063
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ismael Tamayo-Baez
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: December 16, 2015
Filed: April 11, 2016
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Before WOLLMAN, LOKEN, and BYE, Circuit Judges.
____________
BYE, Circuit Judge.
Ismael Tamayo-Baez pled guilty to illegal reentry by a removed alien in
violation of 8 U.S.C. § 1326(a). As a condition of his guilty plea, Tamayo-Baez
reserved the right to appeal the district court's1 denial of his motion to suppress and
1

The Honorable Linda R. Reade, Chief Judge for the United States District
Court for the Northern District of Iowa, in part adopting the Report and

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motion to dismiss the indictment. Tamayo-Baez argues the district court erred in
denying his motion to suppress because law enforcement violated his Fourth
Amendment rights by performing a traffic stop without reasonable suspicion. He also
asserts the district court erred in denying his motion to dismiss the charge of illegal
reentry by a removed alien because his final order of removal in 2004 was not
adequately explained to him in Spanish and therefore violated his due process rights.
We find law enforcement had reasonable suspicion to perform a traffic stop and that
Tamayo-Baez's rights were adequately explained to him in Spanish. We affirm.
I
Tamayo-Baez illegally entered the United States in 1997. In 2002, TamayoBaez married an American citizen and subsequently filed paperwork to obtain lawful
status. Tamayo-Baez and his wife resided in Hampton, Iowa.
In February 2004, Tamayo-Baez was convicted of domestic abuse assault and
two counts of making false licenses in the Iowa District Court for Franklin County.
That same month, Tamayo-Baez received three immigration forms: (1) Notice of
Rights and Request for Disposition (Notice of Rights); (2) Notice to Appear before
an Immigration Judge (Notice to Appear); and (3) a Stipulated Request for Removal
Order and Waiver Hearing (Stipulation for Removal). The Notice of Rights, which
was printed in Spanish and English, alleged Tamayo-Baez was in the United States
illegally and had the right to a hearing before the Immigration Court to determine if
he could remain in the United States. On this form, Tamayo-Baez checked and
initialed the box written in Spanish indicating he admitted he was in the United States
illegally, he wished to return to Mexico, and that he waived his right to a hearing
before the Immigration Court. Both Tamayo-Baez and an immigration officer signed

Recommendation of the Honorable Jon S. Scoles, United States Magistrate Judge for
the Northern District of Iowa.
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and dated the Notice of Rights form which stated Tamayo-Baez had read the form in
Spanish and that the form was also read to him by the immigration officer in Spanish.
Second, the Notice to Appear set forth Tamayo-Baez's rights at a removal hearing.
An immigration agent certified that an immigration officer read the Notice to Appear
form to Tamayo-Baez in Spanish. Tamayo-Baez signed the form. Lastly, the
Stipulation for Removal was printed in both English and Spanish and stipulated that
Tamayo-Baez waived his right to a removal hearing and instead requested the
Immigration Judge (IJ) issue an order based on the written record. In this form,
Tamayo-Baez waived his right to appeal the IJ's decision. Tamayo-Baez filled out the
Stipulation for Removal in Spanish and English by circling responses. He signed the
Stipulation for Removal which indicated he read and understood the form and that his
decision to stipulate was voluntarily, knowingly, and intelligently made.
On March 9, 2004, an IJ ordered Tamayo-Baez be removed from the United
States. One week later, Tamayo-Baez was removed to Mexico.
In the fall of 2014, Immigration and Customs Enforcement (ICE) agents were
investigating the fraudulent use of social security numbers by illegal immigrants by
checking vehicle registrations at worksites in Iowa. During the investigation, ICE
agents found a 1997 black Jeep Cherokee registered to Tamayo-Baez’s wife, Andrea
Tamayo, with a Hampton, Iowa, address. Immigration officers performed a computer
check of the Hampton residence and Ismael Tamayo-Baez's name was associated with
that address. Immigration officers then conducted a criminal history check on
Tamayo-Baez and the search revealed he had been convicted of domestic abuse
assault in 2009–after he was removed–in Franklin County, Iowa.2 Further, a social
media inquiry revealed a photo of Tamayo-Baez in front of the black Jeep Cherokee.
Accordingly, ICE Agent Kevin Taylor testified he believed Tamayo-Baez unlawfully
reentered the United States.

2

Hampton is a city in Franklin County.
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On the morning of October 23, 2014, Agent Taylor drove to the house in
Hampton where he believed Tamayo-Baez resided. Shortly after arriving at the
residence, Agent Taylor testified that he saw a male matching Tamayo-Baez's
description get into a black Jeep Cherokee and drive away. Agent Taylor followed
the Jeep and at around 5:50 a.m., he stopped the Jeep as it was heading out of town.
Agent Taylor testified that he asked the driver for his name and that the driver
stated his name was Ismael Tamayo or Ismael Tamayo-Baez. Agent Taylor also asked
Tamayo-Baez what country he was from and he responded he was from Mexico.
Agent Taylor testified he asked Tamayo-Baez if he had any papers to be in the country
legally and he said no. At that point, Agent Taylor told Tamayo-Baez to step out of
the vehicle and that he was under arrest for violating immigration law. Agent Taylor
took Tamayo-Baez to the Franklin County Sheriff's Office and fingerprinted him for
identification purposes. The fingerprint results confirmed Tamayo-Baez's identity.
A grand jury charged Tamayo-Baez in an indictment with one count of illegal
reentry by a removed alien in violation of 8 U.S.C. § 1326(a). Tamayo-Baez filed a
motion to suppress alleging Agent Taylor lacked reasonable suspicion to perform a
traffic stop. After an evidentiary hearing on the motion, the magistrate judge issued
a Report and Recommendation recommending the district court deny the motion to
suppress. The district court adopted the Report and Recommendation and denied the
motion to suppress.
Tamayo-Baez also filed a motion to dismiss the indictment based upon a
collateral attack of the final removal order. The district court held an evidentiary
hearing on the motion where Tamayo-Baez testified that he did not understand the
forms he had signed because he is functionally illiterate and the immigration officer
only explained his rights to him in English. The district court found Tamayo-Baez's
testimony not credible and denied the motion to dismiss.

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Following the district court's denial of Tamayo-Baez's motion to suppress and
motion to dismiss, Tamayo-Baez entered a conditional plea of guilty. Tamayo-Baez
reserved the right to appeal the district court's denial of his motion to suppress and
motion to dismiss. The district court sentenced Tamayo-Baez to a term of eight
months' imprisonment, and Tamayo-Baez timely filed this appeal.
II
A
Tamayo-Baez argues Agent Taylor lacked reasonable suspicion to conduct a
traffic stop because he improperly relied on an inchoate hunch as to the identification
of the driver prior to the traffic stop. Tamayo-Baez therefore claims the traffic stop
was unlawful and the district court erred by not suppressing the evidence obtained as
a result of his unlawful stop. We disagree.
"We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials." United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)
(quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). The Fourth
Amendment permits investigative traffic stops when law enforcement has reasonable
suspicion of criminal activity. Navarette v. California, 134 S. Ct. 1683, 1687 (2014).
"Reasonable suspicion exists when an 'officer is aware of particularized, objective
facts which, taken together with rational inferences from those facts, reasonably
warrant suspicion that a crime is being committed.'" United States v. Givens, 763
F.3d 987, 989 (8th Cir. 2014) (quoting United States v. Hollins, 685 F.3d 703, 706
(8th Cir. 2012)). "While reasonable suspicion must be more than an inchoate hunch,
the Fourth Amendment only requires that police articulate some minimal, objective
justification for an investigatory stop." United States v. Fuse, 391 F.3d 924, 929 (8th
Cir. 2004) (internal quotation marks omitted). We must evaluate whether the officer
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had "reasonable suspicion of criminal activity" in light of "the totality of the
circumstances." United States v. Walker, 555 F.3d 716, 719 (8th Cir. 2009).
We find Agent Taylor had reasonable suspicion to perform a traffic stop on
Tamayo-Baez. Immigration officers had information to believe Tamayo-Baez had
illegally reentered the United States and was residing in Hampton, Iowa. Specifically,
immigration officers found a 1997 black Jeep Cherokee registered to Tamayo-Baez's
wife at a Hampton address. Immigration officers then performed a computer check
of the Hampton residence and Tamayo-Baez's name was associated with that address.
Next immigration officers completed a criminal history search of Tamayo-Baez and
the search revealed he had been convicted of domestic abuse assault in 2009–after he
was removed–in Franklin County, Iowa. Finally a social media inquiry showed
Tamayo-Baez pictured in front of a black Jeep Cherokee which matched the
description of the 1997 black Jeep Cherokee registered to his wife at the Hampton
address. Therefore, when Agent Taylor identified a man matching Tamayo-Baez's
description get into a black Jeep Cherokee at the Hampton, Iowa, address, he had
reasonable suspicion that the man in the vehicle was Tamayo-Baez and that he was
committing a crime by being in the country illegally.
Accordingly, the district court did not err in denying Tamayo-Baez's motion to
suppress because, based on the totality of the circumstances, Agent Taylor had
reasonable suspicion Tamayo-Baez was committing a crime and therefore the traffic
stop was lawful.
B
Tamayo-Baez argues the district court erred by not granting his motion to
dismiss the charge of illegal reentry by a removed alien because his prior order of
removal was invalid. In particular, Tamayo-Baez now collaterally attacks his prior

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order of removal arguing it violated his due process rights because it was not
adequately explained to him in Spanish. We disagree.
"We review the district court's findings of fact for clear error, but we review de
novo whether those facts establish a due process defect." United States v. Rodriguez,
420 F.3d 831, 833 (8th Cir. 2005). The defendant "bears the burden of proof in a
collateral attack upon a prior deportation." United States v. Martinez-Amaya, 67 F.3d
678, 681-82 (8th Cir. 1995).
Pursuant to 8 U.S.C. § 1326(d), a defendant may collaterally attack a prior
deportation order if:
(1) the alien exhausted any administrative remedies that may have been
available to seek relief against the order;
(2) the deportation proceedings at which the order was issued
improperly deprived the alien of opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
The defendant must meet all three requirements in order to successfully collaterally
attack the prior removal order. Id.; see also United States v. Fernandez-Antonia, 278
F.3d 150, 157 (2d Cir. 2002).
Tamayo-Baez argues that although he waived his right to appeal by signing the
Stipulation for Removal, his waiver was not voluntarily and intelligently made
because he was not advised of his rights in Spanish nor able to understand the
documents he signed due to his limited education. He therefore claims he is exempt
from the requirement of exhausting administrative remedies because his waiver was
invalid. "[I]f an alien knowingly and voluntarily waives his right to appeal an order
of deportation, then his failure to exhaust administrative remedies will bar collateral
attack on the order in a subsequent illegal reentry prosecution under § 1326(d)."
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United States v. Cerna, 603 F.3d 32, 39 (2d Cir. 2010); see also United States v.
Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005) ("An alien who knowingly waives
the right to appeal an immigration judge's order of deportation fails to exhaust
administrative remedies under § 1326(d)(1)."). Tamayo-Baez testified about his
understanding of the immigration documents at his evidentiary hearing but the district
court found his testimony inconsistent with the record and therefore not credible.
The district court's factual findings were not erroneous, let alone clearly
erroneous. Although Tamayo-Baez now claims he did not understand the documents
he signed, he testified that he did not sign documents without understanding them.
Despite arguing after the fact that he was confused while signing the documents,
Tamayo-Baez conceded he did not ask the immigration officers any questions or
inform them that he was confused while signing the documents. While Tamayo-Baez
claimed immigration officers only read his rights to him in English, an immigration
officer signed and dated the Notice to Appear and Notice of Rights forms indicating
he read the forms to Tamayo-Baez in Spanish. The Stipulation for Removal, which
was written in English and Spanish and filled out by Tamayo-Baez in Spanish and
English, stated that Tamayo-Baez read and fully understood the form and that his
decision to stipulate was voluntarily, knowingly, and intelligently made. Therefore,
Tamayo-Baez was adequately advised of his rights in Spanish, his waiver of his right
to appeal was valid, and he failed to exhaust administrative remedies.
Because Tamayo-Baez failed to establish the first requirement of § 1326(d), his
collateral attack fails. The district court did not err in denying Tamayo-Baez's motion
to dismiss.
III
For the foregoing reasons, we affirm the district court.

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