Oscar Aguilar-Linares v. Eric Holder, Jr.

MEMORANDUM

Oscar Aguilar-Linares, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision. The BIA dismissed Aguilar’s appeal of an Immigration Judge’s (“IJ”) order of removal and denial of his motion to suppress a Form 1-44. Because “the BIA conducted] a de novo review and issue[d] its own decision,” we review only the BIA’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We have jurisdiction under 8 U.S.C. § 1252 (a).

The BIA erred by failing to analyze whether the Form 1-44 “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 v. Mukasey, 536 F.3d 1012, 1016 (9th Cir.2008) (quoting Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir.1994)) (internal quotation marks omitted). Instead, the BIA applied the test for the admissibility of evidence in removal proceedings, asking whether the evidence was probative, and its use fundamentally fail'. See Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988). The BIA failed to analyze whether Border Patrol Agent Pritchard or the Riverside County Sheriffs deputies…