Anastacio Garcia-Franco and Carmen Esquivel-Rodriguez v. Immigration and Naturalization Service

(concurring and dissenting):

I concur in the memorandum affirming the order of the Board of Immigration Appeals, as far as it goes. I dissent because it does not go far enough.

There is no merit whatever in the aliens’ motion to reopen, and there was no merit in it before the Supreme Court decided Immigration and Naturalization Service v. Lopez-Mendoza, 1984, — U.S. —, 104 S.Ct. 3479 , 82 L.Ed.2d 778 , on July 5, 1984.

The aliens appeared, with counsel, on March 14, 1983, admitted deportability, and were granted the privilege of voluntary departure on or before May 11, 1983. Their present counsel, William D. McCann, filed a motion to reopen. In it, he alleged that the aliens’ home had been entered by Immigration and Naturalization agents and evidence had been seized from them. He also alleged that the agents did not have a warrant. He did not allege that the aliens did not consent to the entry or search. He did not allege what evidence was found or seized. He did not allege that any evidence found was used against the aliens. The only affidavit filed was one by attorney McCann. In it, he repeats what he says in his motion, on information and belief.

This was, on its face, a…

MEMORANDUM FOR PUBLICATION *

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

Before DUNIWAY, FLETCHER and REINHARDT, Circuit Judges.

Petitioners seek review of an order of the Board of Immigration Appeals dismissing their appeal from the immigration judge’s denial of their motion to reopen their deportation proceeding. Petitioners sought to reopen under 8 C.F.R. § 242.22 (1983) so that they might demonstrate that evidence seized in violation of their fourth amendment rights should have been suppressed at the deportation hearing.

We uphold the Board’s decision on the basis of the Supreme Court’s recent decision in Immigration and Naturalization Service v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984), holding that the fourth amendment exclusionary rule is not applicable in deportation proceedings. We disagree with the dissent that sanctions should be imposed against counsel. The circumstances of this case *519 cannot be equated to those in In Re Campos, 737 F.2d 824 (9th Cir.1984). 1

The petition is denied.

FOR PUBLICATION

The majority agrees to publication under Ninth Circuit Rule 21(e).

. In In re Campos, at 824, the court found in…

748 F.2d 518 Anastacio GARCIA-FRANCO and Carmen Esquivel-Rodriguez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 83-7765. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 11, 1984. Decided Nov. 27, 1984. William D. McCann, William D. McCann & Associates, Walnut Creek, Cal., for petitioners. Mark C. Walters, Richard K. Willard, Lauri Steven Filppu, Marshall Tamor Golding, Atty., Washington, D.C., for respondent. MEMORANDUM FOR PUBLICATION * Petition for Review of an Order of the Board of Immigration Appeals. Before DUNIWAY, FLETCHER and REINHARDT, Circuit Judges. 1 Petitioners seek review of an order of the Board of Immigration Appeals dismissing their appeal from the immigration judge's denial of their motion to reopen their deportation proceeding. Petitioners sought to reopen under 8 C.F.R. Sec. 242.22 (1983) so that they might demonstrate that evidence seized in violation of their fourth amendment rights should have been suppressed at the deportation hearing. 2 We uphold the Board's decision on the basis of the Supreme Court's recent decision in Immigration and Naturalization Service v. Lopez-Mendoza, --- U.S. ----, 104…