Mario Gonzalez-Rivera v. Immigration & Naturalization Service

Opinion by Judge D.W. NELSON; Concurrence by Senior Judge TANG, Partial Dissent by Judge CHOY.

OVERVIEW

Mario Gonzalez-Rivera (Gonzalez) petitions this Court to review the Board of Immigration Appeal’s (BIA) reversal of the decision by the Immigration Judge (IJ). The IJ found that the Border Patrol officers had stopped Gonzalez based solely on his Hispanic appearance in violation of the Fourth Amendment. The IJ further concluded that stopping Gonzalez solely because of his Hispanic appearance was a bad faith Fourth Amendment violation and consequently an egregious constitutional violation requiring suppression of the evidence obtained as a result of the stop. In reversing the IJ, the BIA ruled that the stop was based on a number of factors rather than solely on Gonzalez’ Hispanic appearance, and, on this ba *1443 sis, concluded that no Fourth Amendment violation had taken place.

We hold that the BIA erred in ruling that the stop was based on a number of legitimate factors. We conclude that the stop, which resulted solely from Gonzalez’ Hispanic appearance, constituted a bad faith and egregious violation of the Fourth Amendment. Accordingly, we reinstate the IJ’s decision to…

dissenting in part:

The majority rejects the INS’ claim that Gonzalez failed to establish a prima facie violation of the Fourth Amendment under United States v. Brignoni-Ponce, 422 U.S. 873, 884 , 95 S.Ct. 2574, 2581 , 45 L.Ed.2d 607 (1975), and finds that the BIA attached undue weight to inconclusive suspicional factors cited by the INS as the “articulable facts” supporting the Border Patrol’s stop of Gonzalez’ vehicle. With these portions of the majority’s opinion I concur. However, because I believe this case falls squarely within the rule, rather than any untested exception, stated in INS v. Lopez-Mendoza, 468 U.S. 1032 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984), I do not join part 3 of the majority opinion concluding that the exclusionary rule bars admission of Gonzalez’ inculpatory 1-213 Form at his deportation hearing. On this point I would affirm the BIA’s contrary ruling.

In Lopez-Mendoza the Court rejected extension of the exclusionary rule to civil deportation hearings after extensive cost-benefit analysis. Id. at 1041-1050 , 104 S.Ct. at 3484-89 . In view of the “staggering dimension of the problem that the INS confronts,” *1453 id. at 1049 , 104 S.Ct. at 3488 , the…

concurring:

I concur fully in Judge Nelson’s opinion. I write separately to emphasize that we should not allow our courts to be used to sanction racism in any form. The Supreme Court recognized in Shelley v. Kraemer, 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948), that court enforcement of discriminatory covenants was state action subject to the dictates of the Fourteenth Amendment. Allowing the Immigration Service to utilize evidence obtained from racially discriminatory treatment of Hispanics would entail our participation in that discrimination.

The exclusionary rule here serves the essential function of preserving judicial integrity. Elkins v. United States, 364 U.S. 206, 222 , 80 S.Ct. 1437, 1443 , 4 L.Ed.2d 1669 (1960). Where federal agents violate the Fourth Amendment in bad faith by stopping a person solely based on race, judicial integrity would be impaired by allowing the introduction of evidence obtained by racially discriminatory action. “Federal courts cannot countenance deliberate violations of basic constitutional rights. To do so would violate our judicial oath to uphold the Constitution of the United States.” Adamson v. C.I.R., 745 F.2d 541, 546 (9th Cir.1984).

22 F.3d 1441 62 USLW 2675 Mario GONZALEZ-RIVERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 92-70492. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 10, 1993. Decided April 28, 1994. Raul M. Montes, Armando M. Montes and Gilbert M. Montes, Montes, Montes & Montes, San Diego, CA, for petitioner. David J. Kline, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent. Petition for Review of an Order of The Board of Immigration Appeals. Before: CHOY, TANG, and D.W. NELSON, Circuit Judges. Opinion by Judge D.W. NELSON; Concurrence by Senior Judge TANG, Partial Dissent by Judge CHOY. D.W. NELSON, Circuit Judge: OVERVIEW 1 Mario Gonzalez-Rivera (Gonzalez) petitions this Court to review the Board of Immigration Appeal's (BIA) reversal of the decision by the Immigration Judge (IJ). The IJ found that the Border Patrol officers had stopped Gonzalez based solely on his Hispanic appearance in violation of the Fourth Amendment. The IJ further concluded that stopping Gonzalez solely because of his Hispanic appearance was a bad faith Fourth Amendment violation and consequently an egregious constitutional…