NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZOILA MARISOL HENRIQUEZ-PEREZ; No. 17-72221

DYLAN NEYMAR HENRIQUEZ-PEREZ, 17-73429

Petitioners, Agency Nos. A208-416-470

A208-416-471

v.

ROBERT M. WILKINSON, Acting MEMORANDUM* 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

Zoila Marisol Henriquez-Perez and her young son Dylan (collectively,

“Henriquez-Perez”) petition for review of the Board of Immigration Appeals’

(“BIA’s”) dismissal of their appeal contending that the immigration judge (“IJ”)

should have granted their motion to suppress evidence and terminated proceedings,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. as well as the BIA’s denial of their motion to reconsider. We deny the petitions for

review.

1. The BIA did not err in denying Henriquez-Perez’s motion to suppress

the Forms I-213 introduced by the Department of Homeland Security. Although

the Fourth Amendment’s “exclusionary rule generally does not apply to removal

proceedings,” one of “two critical exceptions to this rule”—and the only one

Henriquez-Perez raised before the BIA—is “when the agency egregiously violates

a petitioner’s Fourth Amendment rights.” Sanchez v. Sessions, 904 F.3d 643, 649

(9th Cir. 2018) (citation omitted). Henriquez-Perez has not made a prima facie

showing, even if Border Patrol agents failed to question her about alienage or

illegal entry, that her arrest near the border was an egregious violation of her

Fourth Amendment rights. Cf. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018

(9th Cir. 2008) (holding that entering a home without a warrant, consent, or

exigent circumstances was an egregious Fourth Amendment violation).

2. Henriquez-Perez also has not made a prima facie showing that the

statements she made while in detention should have been excluded as involuntary.

The conditions of detention and the circumstances of the interview described by

Henriquez-Perez do not suggest that her will was overborne, triggering application

of the Fifth Amendment’s exclusionary rule. See Mincey v. Arizona, 437 U.S. 385,

401–02 (1978). Additionally, Henriquez-Perez has not shown she was prejudiced

2 by an alleged false statement in the Form I-213 that she was advised of and

acknowledged her administrative rights in removal proceedings. Henriquez-Perez

does not cite any statute or regulation requiring the agents to inform her of her

rights.

3. Finally, Henriquez-Perez’s contention that the notice to appear was

not properly filed because it lacked “a certificate showing service on the opposing

party . . . which indicates the Immigration Court in which the charging document is

filed,” 8 C.F.R. § 1003.14(a), is foreclosed by Aguilar Fermin v. Barr, 958 F.3d

887, 895 n.4 (9th Cir. 2020).

PETITIONS DENIED.

3 Henriquez-Perez v. Wilkinson, Nos. 17-72221, 17-73429 FILED BERZON, Circuit Judge, concurring: MAR 9 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 Henriquez-Perez

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 Henriquez-Perez did not adequately raise the issue of a regulatory

violation before the Board of Immigration Appeals (“BIA”), and the BIA did not

allude to the regulation in its opinion. Because our 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 Henriquez-Perez 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, 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.