NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO ALEXANDER IXCHOP-PEREZ, No. 19-71144

Petitioner, Agency No. A206-150-579

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted June 10, 2020 San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.

Immigration and Customs Enforcement (“ICE”) officers arrested Mario

Ixchop-Perez without a warrant outside a San Francisco hospital after unsuccessfully

searching for him at his home. Ixchop moved to suppress evidence obtained from

the arrest and to terminate removal proceedings, asserting both constitutional and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. regulatory violations. An immigration judge (“IJ”) denied the motion without an

evidentiary hearing; the IJ later denied Ixchop’s applications for asylum and

withholding of removal. The Board of Immigration Appeals (“BIA”) dismissed

Ixchop’s appeal. Ixchop petitioned for review.1 We have jurisdiction under 8 U.S.C.

§ 1252(a)(1).2 We grant the petition in part and deny it in part.

1. The Fourth Amendment exclusionary rule applies in removal

proceedings only “(1) ‘when the agency violates a regulation promulgated for the

benefit of petitioners and that violation prejudices the petitioner’s protected

interests’ and (2) ‘when the agency egregiously violates a petitioner’s Fourth

Amendment rights.’” Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019)

(quoting Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2019)). A violation is

egregious if evidence is obtained by deliberate violations of the Fourth Amendment

or by conduct a reasonable officer should know violates the Constitution. Lopez-

Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008).

2. The ICE officers did not egregiously violate the Fourth Amendment by

1 Ixchop also sought cancellation of removal and protection under the Convention Against Torture before the agency, but does not challenge the denial of that relief in his petition for review. 2 Although Ixchop did not specifically appeal the IJ’s denial of reconsideration of the suppression motion to the BIA, the BIA addressed all suppression-related issues on appeal. We may therefore address that denial here. See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018) (“It is well-established that we may review any issue addressed on the merits by the BIA . . . .”).

2 entering the curtilage of Ixchop’s home without a warrant with the intent to arrest

him. At the time of the entry, no binding authority held that an officer’s subjective

intent was relevant in evaluating the constitutionality of an entry into the curtilage.

See United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th Cir. 2012). The entry was

reasonable under then-extant caselaw because it was “consistent with an attempt to

initiate consensual contact with the occupants of the home.” Id. at 1188.

3. The ICE officers also did not egregiously violate the Fourth

Amendment in securing consent from Ixchop’s sister to enter the home by

identifying themselves as the “police” looking for Ixchop. Even assuming that ICE

officers are not the “police,” we are not persuaded that this representation alone

misinformed Ixchop’s sister “as to the purpose for which the agent[s] s[ought]

entry.” United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (per curiam).

Ixchop fails to explain how the officers’ statement that they were looking for him

was inconsistent with their intent to arrest him if he were located. Because we

conclude that the ICE officers did not impermissibly obtain consent, they also did

not violate 8 C.F.R. § 287.8(f)(2), which generally prohibits warrantless entry into a

residence without consent.

4. Although the ICE officers obtained consent only to look for Ixchop,

they remained after not finding him and asked his sister where he was, falsely

claiming they needed him to sign probation paperwork. Even assuming that the ICE

3 officers exceeded the scope of consent by remaining in the house, any constitutional

violation was not egregious. Ixchop identifies no binding authority stating that such

questioning after the conclusion of a consent search violates the Fourth Amendment.

See Martinez-Medina v. Holder, 673 F.3d 1029, 1035 (9th Cir. 2011) (finding no

egregious constitutional violation because of a “lack of clarity in the law”). Our

cases invalidating consent searches based on misrepresentations focus only on initial

entry into a residence. See Whalen v. McMullen, 907 F.3d 1139, 1147 (9th Cir.

2018) (collecting cases).

5. Ixchop has made a prima facie case that the ICE officers committed a

regulatory violation by not securing an arrest warrant prior to arresting him. See 8

C.F.R. § 287.8(c)(2). Immigration officers may make a warrantless arrest only if

they have reason to believe that a person not lawfully in the country is “likely to

escape before a warrant can be obtained.” Id. § 287.8(c)(2)(ii). Nothing in the

record establishes that Ixchop, who had lived in San Francisco for many years before

the arrest and whose wife was giving birth in the hospital outside which he was

arrested, was a flight risk. Nor does the record suggest that the arresting officers

even considered whether Ixchop was a flight risk or whether a warrant was required.

The IJ’s reliance on Ixchop’s immigration status is insufficient because the

regulation requires not only that the arrestee be in the country without authorization,

but also a separate determination of flight risk. See 8 C.F.R. § 287.8(c)(2)(i)–(ii).

4 And, nothing in Ixchop’s criminal history indicated he was a flight risk. Indeed, the

officers knew Ixchop’s address before setting out to arrest him.

This regulation was promulgated for the benefit of petitioners like Ixchop.

See Sanchez, 904 F.3d at 651. It “establish[es] enforcement standards” for the

“conduct of arrests” and “assure[s] the continuance of disciplined and professional

conduct by [] enforcement personnel.” 57 Fed. Reg. 47011, 47011 (Oct. 14, 1992).

But the Fourth Amendment does not require a determination of exigency before a

warrantless public arrest, see United States v. Driver, 776 F.2d 807, 809 (9th Cir.

1985), so we cannot presume prejudice from this regulatory violation, see Sanchez,

904 F.3d at 652. Because the IJ and the BIA did not address the issue of prejudice,

we grant the petition in part and remand for the agency to address that issue in the

first instance. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per

curiam) (“If we conclude that the BIA’s decision cannot be sustained upon its

reasoning, we must remand to allow the agency to decide any issues remaining in

the case.”).

6. The warrantless arrest was also permissible only if the ICE officers had

reason to believe that Ixchop was unlawfully present in the United States, 8 C.F.R.

§ 287.8(c)(2)(i), which is equivalent to the constitutional requirement of probable

cause, see Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980). On this record,

we cannot discern what information the officers had about Ixchop’s immigration

5 status before the arrest. We therefore grant the petition in part and remand for a

more fulsome development of the record on this issue. See de Gallardo v. INS, 624

F.2d 85, 88 (9th Cir. 1980).

7. Even assuming that the ICE officers violated 8 C.F.R. § 287.3(c) by

failing to advise Ixchop of the reason for his arrest, his right to legal representation,

and the consequences of any statements, compliance with this regulation is not

constitutionally mandated at the time of arrest. See Tejeda-Mata, 626 F.2d at 724

n.3. Thus, prejudice may not be presumed. See Sanchez, 904 F.3d at 652. The BIA

did not err in determining that Ixchop failed to show that he was prejudiced by this

regulatory violation.3

8. An ICE directive prohibits arrests at sensitive locations, such as

hospitals, absent exigent circumstances. Agencies may be required to abide by

certain internal policies, including those not reflected in formal regulations. Alcaraz

v. INS, 384 F.3d 1150, 1162 (9th Cir. 2004) (citing United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954)). Although the ICE directive disclaims the

provision of any rights or benefits, the Accardi doctrine can extend to practices for

which the agency disclaims binding effect. See id. (collecting cases). Because the

3 The BIA may have erred in finding a violation of this regulation, see Samayoa-Martinez v. Holder, 558 F.3d 897, 901–02 (9th Cir. 2009), but “we cannot deny a petition for review on a ground upon which the BIA itself did not base its decision,” Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018) (cleaned up).

6 IJ and BIA did not address whether the Accardi doctrine, properly understood,

governs the directive, we grant the petition in part. We remand for “further factual

development regarding the nature and extent of agency statements regarding” arrests

at sensitive locations and a determination of whether there was a policy that bound

the agency. Id. at 1162–63.

PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART.4

4 Because we remand for further proceedings, we decline to address the denial of the application for withholding and removal.

7