Juan Leal-Burboa v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN LEAL-BURBOA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70279
Agency No. A213-086-339
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2022**
Pasadena, California
Before: BEA, IKUTA, and CHRISTEN, Circuit Judges.
1. Juan Leal-Burboa (“Petitioner”) petitions this court to review the denial of
his motion to suppress evidence and to terminate removal proceedings by the Board
of Immigration Appeals (“BIA”). For the following reasons, we deny the petition.
2. The parties are familiar with the facts of the case, so we do not recite them
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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here. All legal conclusions of the BIA, including the denial of a motion to suppress,
are reviewed de novo. Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018). All
factual determinations are reviewed under the substantial evidence standard. 8
U.S.C. § 1252(b)(4)(B).
3. Petitioner contends that the Immigration and Customs Enforcement
(“ICE”) officers who stopped his vehicle did not satisfy the requisite legal standard
under the Fourth Amendment or agency regulations for an investigatory stop and
that any evidence obtained is therefore inadmissible as a result because the officers
violated a regulation promulgated for benefit of petitioners and violated Petitioner’s
protected interests and committed an “egregious” violation of his rights. Sanchez,
904 F.3d at 649. Petitioner fails to make out a prima facie claim that a regulation
was violated or that his rights have been violated. The Form I-213 was admissible
and presumed reliable. Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). Because
ICE officers believed “that the person being questioned . . . [wa]s an alien illegally
in the United States,” they needed only reasonable suspicion, and not probable cause
as argued by Petitioner, to justify the stop. 8 C.F.R. § 287.8(b)(2); see also Perez
Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019).1 ICE officers were watching an
1 Petitioner has forfeited his argument on appeal that the ICE officers unduly
prolonged the investigatory stop by failing to raise the issue in his opening brief.
Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), overruled in part on other
grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc).

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apartment complex for an individual suspected of being an alien illegally present in
the United States—the target. The officers noted that Petitioner left the address
associated with the intended target, met the physical descriptions of the intended
target—independent of race—and entered and drove a vehicle that matched the
description of the car used by the intended target. These non-racial factors were
more than sufficient to provide the ICE officers individualized reasonable suspicion
to stop Petitioner and to conduct an investigatory stop to determine if Petitioner was
the target. See Alabama v. White, 496 U.S. 325, 331 (1990) (upholding an
investigatory stop when defendant left the building and entered the car described in
a tip); United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (holding that
because defendant matched a robbery suspect’s description, the district court’s
probable cause determination was supported).2 It was during this investigatory stop
that the officers learned of Petitioner’s illegal presence in the United States.
Petitioner’s rights were not violated. And the regulation, 8 C.F.R. § 287.8(b)(2),
was not violated. Thus, the BIA did not err in denying his motion to suppress.
4. Although Petitioner contests some aspects of the stop as memorialized in
his I-213 form, the uncontested facts provide substantial evidence to support the
2 Because the officers relied on these other factors beyond Petitioner’s race to
substantiate their basis for conducting an investigatory stop, Petitioner’s central
argument that they racially profiled him and thereby ran afoul of our holding in
Sanchez is wholly without merit. 904 F.3d at 656 (holding “that race . . . alone can
never serve as the basis for reasonable suspicion”).

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agency’s determinations regarding Petitioner’s alienage and illegal presence in the
United States. Matter of Barcenas, 19 I. & N. Dec. 609, 611–12 (BIA 1988). Thus,
the BIA properly relied on the uncontested evidence in the record to conclude that
the agency has demonstrated by clear and convincing evidence that Petitioner is
removable.3
5. For the foregoing reasons, we DENY the petition.
3 Petitioner has forfeited his argument that the Immigration Judge lacked jurisdiction
because he failed to raise the issue in his opening brief. Rizk, 629 F.3d at 1091 n.3.

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