FILED

NOT FOR PUBLICATION DEC 26 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS GARCIA-GARCIA, No. 10-70432

Petitioner, Agency No. A079-638-308

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted December 4, 2013 San Francisco, California

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

Jose Luis Garcia-Garcia petitions for review of an order of the Board of

Immigration Appeals dismissing his appeal of a decision by an immigration judge

denying his motion to suppress evidence of alienage and to terminate proceedings,

and ordering Garcia-Garcia removed from the United States.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Generally, the exclusionary rule does not apply in civil immigration

proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1034, 1050 (1984); Lopez-

Rodriguez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir. 2008). However,

“administrative tribunals are still required to exclude evidence that was ‘obtained

by deliberate violations of the Fourth Amendment or by conduct a reasonable

officer should know is in violation of the Constitution.’” Lopez-Rodriguez, 536

F.3d at 1016 (quoting Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994)).

Seizing an individual based solely on his or her Hispanic appearance or

Hispanic-sounding name is an egregious violation of the Fourth Amendment. See

Orhorhaghe, 38 F.3d at 497-98, 503; Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448-

50 (9th Cir. 1994). Garcia-Garcia, however, has offered absolutely no evidence

that his Hispanic appearance or his Hispanic-sounding last name were the reasons

for his continued detention. In fact, he freely admitted that he did not know why

immigration officers took custody of him after he had been judicially cleared of

criminal charges. Furthermore, his argument that, “[a]bsent another explanation, it

should be presumed that his Hispanic appearance and surname were the grounds

for his continued detention in Los Angeles even after he was cleared of criminal

charges,” is without basis in the law and we decline to adopt it.

PETITION DENIED.

Page -2-

FILED

Garcia-Garcia v. Holder, No. 10-70432 DEC 26 2013

MOLLY C. DWYER, CLERK

HAWKINS, Senior Circuit Judge, concurring: U.S. COURT OF APPEALS

Because it is not clear the DHS agents who assumed custody of Petitioner in

Los Angeles knew that the detainer issued against him may have referred to a different

individual, their arrest of Petitioner did not violate the Fourth Amendment. See Hill

v. California, 401 U.S. 797, 802-04 (1971); United States v. Espinosa, 827 F.2d 604,

609 (9th Cir. 1987). Accordingly, I join the Court’s opinion in full.

I write separately to remind all parties that they have a shared responsibility to

build a complete record during administrative proceedings. Documents that are

integral to the parties’ factual and legal claims should be included in the record

presented to this court.

Here, DHS relies on the Form I-213 as its sole evidence of alienage. For his

part, Petitioner argues DHS’s reliance on an immigration detainer, Form I-247, in

arresting Petitioner ran afoul of the Constitution. In the context of removal

proceedings, these are both serious charges. But the relevant documents are not

before us. The I-247 is not in the record. The I-213 is missing a critical attachment.

The Mexican identification, which the BIA reasoned provided DHS with reasonable

suspicion to arrest Petitioner, is not in the record. The absence of these critical

documents frustrates this court’s ability to review the proceedings below.

Going forward, DHS should voluntarily furnish the immigration court with documents in its possession that are central to the litigation. If the agency refuses to

produce these “essential” documents, the alien may subpoena them. 8 C.F.R. §§

1003.35, 1287.4(a)(2)(ii); see Oliva-Ramos v. Att’y Gen’l, 694 F.3d 259, 273 (3d Cir.

2012) (remanding with instructions to grant subpoenas in a suppression case). And

the IJ and BIA should demand their inclusion in the record. As neutral

decisionmakers, the IJ and BIA should insist all relevant facts be before them when

deciding whether an individual is to be removed from this country.

Nor, in these suppression cases, should the government be able to cite Matter

of Barcenas, 19 I. & N. Dec. 609 (BIA 1988), to disclaim any responsibility to

produce records and witnesses. In my view—and, it seems, in the view of the Second

and Third Circuits—the Barcenas “burden,” id. at 611, refers only to the alien’s

burden of persuasion, and not to the burden of production of relevant evidence. See

Cotzojay v. Holder, 725 F.3d 172, 179-80, 183 (2d Cir. 2013) (requiring petitioner to

furnish only personal testimony before requiring the government to justify the

seizure); Oliva-Ramos, 694 F.3d at 273 (holding petitioner was entitled to subpoena

agency records and personnel to establish constitutional claim); cf. Kaur v. I.N.S., 237

F.3d 1098, 1100–01 (9th Cir. 2001) (remanding with instruction to grant asylum

applicants a subpoena for evidence material to their claim). A contrary interpretation

risks violating the principles of fundamental fairness governing removal proceedings.

2 See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1051 (1984) (plurality op.); Saidane v.

I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997).

3