Humberto Martin-Perez v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HUMBERTO MARTIN-PEREZ, No. 16-71722 Petitioner, Agency No. A088-923-390 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 4, 2019** Pasadena, California Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL,*** District Judge. Humberto Martin-Perez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. Immigration Judge’s (“IJ”) denial of his motion to suppress and terminate removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de novo the denial of a motion to suppress and claims of constitutional violations. Martinez- Medina v. Holder, 673 F.3d 1029, 1033 (9th Cir. 2011). We deny the petition. Martin-Perez argues that the BIA erred in denying his motion to suppress and terminate the removal proceedings because the evidence the Government submitted to prove his alienage was the product of a stop and arrest that violated the Fourth Amendment. Martin-Perez alleges that he was walking to work on the evening of November 27, 2012, when two Customs and Border Protection agents in a patrol car pulled up next to him and—solely because of his perceived Mexican ethnicity—ordered him to stop. He panicked and ran, but he was followed and arrested. After acquiring Martin-Perez’s name, photograph, and fingerprints, the Government located its existing records of a 2008 deportation of Martin-Perez and used those records to establish his alienage in the removal proceedings that followed. The IJ and BIA did not err in denying Martin-Perez’s motion to suppress, even assuming that his stop and arrest violated the Fourth Amendment and that the Government would not have found his 2008 records had it not learned his identity as a result of the arrest. The identity of an individual in immigration proceedings is not suppressible, even if it came to be known through an egregious constitutional 2 violation.1 See United States v. Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004). And “there is no sanction to be applied when an illegal arrest only leads to discovery of the man’s identity and that merely leads to the official file or other independent evidence” of alienage. Id. (quoting United States v. Orozco-Rico, 589 F.2d 433, 435 (9th Cir. 1978)). The evidence of Martin-Perez’s alienage from his 2008 file was not suppressible. Martin-Perez contends that an exception to the no-suppression rule for identity evidence exists when the underlying “seizure was race-based.” But Del Toro Gudino rejected that exact argument. The ...

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