FILED

NOT FOR PUBLICATION

JAN 25 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTANA PORTILLO-FLORES; No. 17-71406

DAYRON CAMILO FLORES-

PORTILLO, Agency Nos. A208-687-624

A208-687-625

Petitioners,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Argued and Submitted November 17, 2020 San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges. Concurrence by Judge BERZON

Santana Portillo-Flores (Portillo) and her young son Dayron Flores-Portillo

petition for review of Board of Immigration Appeal’s (BIA) dismissal of their

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal contending that the Immigration Judge (IJ) should have granted their

motion to suppress evidence, allegedly obtained after the government egregiously

violated the Fourth Amendment, and terminated proceedings.

Petitioners were arrested after being found walking near the border in the

Rio Grande Valley. The next day, after being transported to the border patrol

station, Portillo acknowledged Petitioners’ Salvadoran nationality and their illegal

entry. At the removal hearing, Respondent introduced Portillo’s Salvadoran

identification card, her son’s Salvadoran birth certificate, and the Forms I-213

describing the circumstances of the arrest. Petitioners’ motion to suppress was

granted with respect to the child’s birth certificate but otherwise denied. The BIA

affirmed the order denying the motion to suppress and to terminate proceedings.

In immigration proceedings, the exclusionary rule applies to evidence

obtained in violation of the Fourth Amendment only when the violation is

egregious. See, e.g., Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018).

Petitioners bear the burden of making a prima facie showing of an egregious

Fourth Amendment violation. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA

1988).

In support of their motion to suppress, Petitioners provided a declaration by

Portillo that, when confronted by the Customs and Border Patrol Agent, she did not

2 admit alienage and was not asked about alienage or illegal entry. On this basis

Petitioners contend their arrest must have resulted in an egregious violation of their

Fourth Amendment rights. There is no requirement that those particular questions

be asked before an arrest for unlawful entry, however, and as the BIA observed,

the declaration provides no other information about interactions between

Petitioners and the agents prior to the arrest. The declaration attests to an arrest

next to the border where the Petitioners were not told the grounds for the arrest.

Cases where we have ordered exclusion based on egregious Fourth Amendment

violations involved more than that. See, e.g., Lopez-Rodriguez v. Mukasey, 536

F.3d 1012, 1018 (9th Cir.2008) (entry into home). The declaration, therefore, does

not establish a prima facie case of an egregious Fourth Amendment violation.

Petitioners also contend that the IJ and BIA should not have relied on the

Forms I-213 because they were not entitled to the usual presumption of regularity

afforded government records. Petitioners point to a lack of particularity and the

use of boilerplate phrases, but do not cite any authority to support an inference that

the Forms were inadmissible or that they establish any violation of constitutional

rights. Moreover, the Forms contained information specific to these Petitioners,

including names, dates, and the coordinates of the relatively isolated location near

3 the border where Petitioners were found. There is no reason to order them

suppressed.

Petitioners separately appeal the BIA’s denial of their motion to strike

Portillo’s identification card. Petitioners argue that the identification card should

be stricken because it was not certified and translated pursuant to regulations. For

the exclusionary rule to apply on the basis of a regulatory violation, the violation

must prejudice the petitioners. Sanchez, 904 F.3d at 649. As the BIA correctly

held, the admission of the identification card did not prejudice the Petitioners

because it was not necessary to establish alienage.

Petitioners also claim Portillo’s statements should be suppressed because

they were made after she and her son had been held for a day in harsh conditions

and threatened with deportation. The Petitioners contend that the statements

should have been excluded as involuntary in violation of their Fifth Amendment

rights. Petitioners provide few details about the confinement and no information

about the nature of the interrogation that would suggest the conditions caused

Portillo’s will to be overborne for purposes of the Fifth Amendment’s exclusionary

rule. See Mincey v. Arizona, 437 U.S. 385, 386 (1978).

Petitioners argued for the first time on appeal to the BIA that the Notice to

Appear failed to list the correct immigration court address. Such failure does not

4 strip the immigration court of jurisdiction. Aguilar Fermin v. Barr, 958 F.3d 887,

895 (9th Cir. 2020).

The Petitions for Review are DENIED.

5 Portillo-Flores v. Wilkinson, No. 17-71406 FILED BERZON, Circuit Judge, concurring: JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the memorandum disposition.

With respect to the Fourth Amendment issue, I agree that Portillo-Flores has

not made a prima facie showing of an egregious Fourth Amendment violation. But,

in my view, she has made a prima facie showing that the Border Patrol agents

lacked probable cause to arrest her. That lack of probable cause likely amounted to

a regulatory violation. See 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only

when the designated immigration officer has reason to believe that the person to be

arrested has committed an offense against the United States or is an alien illegally

in the United States.” (emphasis added)); Tejeda-Mata v. INS, 626 F.2d 721, 725

(9th Cir. 1980) (equating the phrase “reason to believe” with the constitutional

requirement of probable cause). “A successful prima facie showing of a regulatory

violation for evidentiary suppression purposes . . . entitle[s] the petitioner to a

remand for the government to rebut the petitioner’s showing.” Sanchez v. Sessions,

904 F.3d 643, 653 (9th Cir. 2018); see Matter of Barcenas, 19 I. & N. Dec. 609,

611 (BIA 1988).

But Portillo-Flores did not adequately raise the issue of a regulatory

violation before the Board of Immigration Appeals (“BIA”). And the BIA, unlike

the immigration judge, did not allude to the regulation in its opinion. Because our

1 panel cannot grant relief on an issue not exhausted before or considered by the

BIA, I concur in the denial of the petition.

I note that, although Portillo-Flores apparently accepts that she bears the

burden to establish a prima facie violation of the Fourth Amendment, placing the

burden on petitioners to make a prima facie showing that probable cause was

lacking is problematic. In the criminal context, if a defendant brings a motion to

suppress challenging a warrantless search or seizure, “the government carries the

burden to bring the case within one of the exceptions to the warrant requirement.”

3A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 689

(West 4th ed. 2020 Update); see United States v. Hawkins, 249 F.3d 867, 872 (9th

Cir. 2001). If there is any initial burden on the defendant, it is slight: “once [the

defendant] demonstrates that a warrantless search or seizure occurred, the burden

shifts to the government to demonstrate a justification or exception to the warrant

requirement.” United States v. Guevara, 745 F. Supp. 2d 1039, 1043 (N.D. Cal.

2010) (Alsup, J.).

Here, the BIA places the burden on petitioners to establish a prima facie case

that probable cause was lacking, before requiring the government to state the

reasons underlying its probable cause determinations. See Matter of Barcenas, 19

I. & N. Dec. at 611. That is backwards, and saddles petitioners with guessing at the

government’s reasons for arresting them, and attempting to rebut those reasons,

2 before the government has even revealed them. In the regulatory context, Sanchez

avoided this anomaly by holding that the petitioner met his burden with regard to

the weaker “reasonable suspicion” standard by establishing not that reasonable

suspicion was in fact lacking, but that the government had “yet to offer specific and

articulable facts that would support the Coast Guard officers’ decision to detain

Sanchez on the basis of reasonable suspicion that he was unlawfully present in this

country or otherwise engaged in illegal activity.” 904 F.3d at 650–51 (emphasis

added).

But again, the validity of the BIA’s burden-shifting approach was not raised

before the agency, nor was it challenged before us. So I concur in denying the

petition.

3