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Samayoa-Martinez v. Holder

March 3, 2009


On Petition for Review of an Order of the Board of Immigration Appeals D.C. No. A078-461-205.

The opinion of the court was delivered by: Ikuta, Circuit Judge


Submitted October 20, 2008*fn1 -- Pasadena, California.

Before: Ferdinand F. Fernandez, Consuelo M. Callahan and Sandra S. Ikuta, Circuit Judges.


Mynor Manfredo Samayoa-Martinez seeks relief from a final order of removal on the ground that the immigration judge (IJ) erred in admitting a Form I-213 (Record of Deportable/Inadmissible Alien) into evidence. Samayoa alleges that this Form I-213 included information that the Immigration and Naturalization Service (INS) obtained in violation of its own regulations. Because we conclude that the INS did not commit any regulatory violation, we deny Samayoa's petition for review.


On January 18, 2001, John Lomeli, a military police officer with the China Lakes Police Department, observed a car crossing a solid white line on a street on the China Lake Naval Air Weapons Station. After making a routine traffic stop, Lomeli questioned Samayoa, who was driving the car, and the three passengers. Samayoa and his passengers admitted they were not citizens of the United States. Nor were they able to produce valid immigration documents in response to Lomeli's request for identification. According to Samayoa, Lomeli ordered Samayoa and the passengers out of the car and handcuffed them. Lomeli contacted his supervisor, who in turn contacted the INS.*fn2 A border patrol agent questioned Samayoa over the telephone but did not inform him of his procedural rights under immigration law. After this telephone interview, Lomeli transported Samayoa and the other passengers to a nearby police station, where they were fingerprinted and photographed. Lomeli then transported Samayoa and the passengers to the Jawbone Canyon Ranger Station outside Bakersfield, California, where they were transferred into INS custody. Samayoa alleges he was rearrested and once again was not advised of his procedural rights.

While in INS custody, Samayoa and his passengers were transferred to Bakersfield, California. The INS prepared a Form I-213, which included Samayoa's name, country of nationality, and time, manner, and place of his last entry into the United States. On the same day, the INS personally served Samayoa with a Notice to Appear (NTA), charging him with removeability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i)*fn3 and requiring him to appear in immigration court. The INS filed Samayoa's NTA with the immigration court on January 24, 2001.

At Samayoa's deportation hearing, the government moved to enter the Form I-213 into evidence. Samayoa filed a motion to suppress the Form I-213 on the ground (among others) that the INS had obtained the information contained in the Form I-213 in violation of several federal regulations. The IJ denied the motion to suppress. Because the evidence in the Form I-213 established that Samayoa was an alien, and Samayoa could not demonstrate that he was in the United States legally, the IJ determined that Samayoa was removable. The IJ granted Samayoa's request for voluntary departure.

On appeal, the BIA affirmed the IJ's determination, citing Matter of Burbano, 20 I & N Dec. 872, 874 (BIA 1994). Samayoa timely filed this petition for review.


We have jurisdiction under 8 U.S.C. § 1252(a). Because the BIA cited its decision in Burbano and did not disagree with any part of the IJ's decision, "we review the IJ's decision as if it were that of the BIA." Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc) (internal quotation marks omitted). "Factual findings underlying an IJ's order are reviewed for substantial evidence." Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir. 2008). Questions of law are reviewed de novo. Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047, 1050 (9th Cir. 2008).

On appeal, Samayoa argues that his deportation proceeding was invalid because the INS obtained the information in his Form I-213 in violation of various immigration regulations, and this violation was prejudicial to his interests. This argument is based on United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), where we held that the INS's violation of a regulation requiring detained aliens to be notified that they could communicate with the consular or diplomatic officers of their country could invalidate a deportation proceeding if: 1) the regulation ...

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