Tactical Stop-Loss, LLC v. Travelers Casualty and Surety

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3802
___________
Domingo Eugenio Lopez-Gabriel, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: June 14, 2011
Filed: September 2, 2011
___________
Before COLLOTON, CLEVENGER, 1 and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Domingo Eugenio Lopez-Gabriel, a native and citizen of Guatemala, petitions
for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from an Immigration Judge’s (“IJ”) order removing him from the United
States. Lopez-Gabriel asserts that evidence of his alienage was obtained in violation
of his rights under the Fourth and Fifth Amendments. He contends that the evidence
1The Honorable Raymond C. Clevenger III, United States Circuit Judge for the
Federal Circuit, sitting by designation.

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should have been suppressed or, at a minimum, he should have been afforded an
evidentiary hearing on his motion to suppress evidence. We deny the petition.
I.
On January 15, 2008, police officer Brett Wiltrout of Worthington, Minnesota,
arrested Lopez-Gabriel for “No Minnesota’s Driver’s License (No Proper
Identification)” after a traffic stop. At the police station, agents from the United States
Immigration and Customs Enforcement (“ICE”) questioned Lopez-Gabriel. On
January 17, 2008, ICE agents transferred Lopez-Gabriel to the ICE office in Sioux
Falls, South Dakota, and questioned him further. Based on evidence obtained from
the interrogations, the Department of Homeland Security (“DHS”) commenced
removal proceedings against Lopez-Gabriel pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
The DHS asserted that Lopez-Gabriel is a native and citizen of Guatemala, and that
he was subject to removal because he was an alien present in the United States without
being admitted or paroled.
Lopez-Gabriel moved to suppress all evidence that was obtained “as a result of
[the] illegal stop, seizure, and interrogation” of him by Officer Wiltrout, and all
evidence obtained from the “coercive, in-custody interrogations” of him between
January 15 and 17, 2008. He also moved for an evidentiary hearing, for discovery,
and to terminate his removal proceedings.
In support of his motions, Lopez-Gabriel submitted an affidavit that set forth
his version of events. He asserted that on January 15, 2008, a police officer saw him
at an intersection and pulled him over, even though he “had done nothing wrong.”
The officer, who was wearing a police uniform and had a handgun strapped to his belt,
did not tell Lopez-Gabriel that he had the right to remain silent. Lopez-Gabriel
averred that he did not feel free to leave, because the officer had signaled him with
flashing lights to stop.
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At the police station, officers told Lopez-Gabriel that he was getting a citation
or ticket. The officers took money from Lopez-Gabriel “to pay for costs,” but would
not allow him to pay the ticket. ICE agents questioned Lopez-Gabriel at the jail, but
did not inform him that he had the right to remain silent. According to Lopez-Gabriel,
he felt that he had to answer the agents’ questions because he was in jail.
After transferring Lopez-Gabriel to the ICE office in Sioux Falls, ICE agents
questioned him without advising that he could remain silent. Because Lopez-Gabriel
was under arrest and at the ICE office with several armed ICE agents, he felt that he
must answer their questions. In conclusion, Lopez-Gabriel stated:
I feel that the police stopped me because I look Latino. I believe that if
I were not Latino, the police would have let me pay the ticket and go
home, or they would have just given me the ticket to pay later and let me
go home. I do not believe that the police treated me the same way they
treat white people who are in the same situation.
The DHS opposed Lopez-Gabriel’s motion and submitted the police report of
Officer Wiltrout. In the report, Wiltrout said that he stopped Lopez-Gabriel because
Lopez-Gabriel’s vehicle had a “heavily cracked” windshield. Wiltrout asked Lopez-
Gabriel for a driver’s license. Lopez-Gabriel stated that he did not have a license and
gave the officer a Guatemalan identification card, which was “peeling” and “difficult
to read.” Wiltrout learned through police radio communications that Lopez-Gabriel
previously had received a citation for “No Minnesota Driver’s License” from the
Worthington Police Department. Because Lopez-Gabriel could not prove the
authenticity of his identification card, Officer Wiltrout arrested Lopez-Gabriel for “No
Minnesota Driver’s License (No Proper Identification)” and took him to the Nobles
County jail. According to Wiltrout, authorities gave Lopez-Gabriel a ticket and the
option to post bond, provide proper identification, or appear before a judge.
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The IJ denied Lopez-Gabriel’s motions on February 10, 2009, ruling that he had
not presented a prima facie case of a Fourth or Fifth Amendment violation. On March
19, 2009, the IJ ordered Lopez-Gabriel removed from the United States. Lopez-
Gabriel appealed this final decision to the BIA. The BIA affirmed and dismissed
Lopez-Gabriel’s appeal. The BIA determined there was nothing in the record to
support Lopez-Gabriel’s assumption that Officer Wiltrout stopped Lopez-Gabriel
based on his race, and that he thus failed to show an egregious constitutional violation.
The BIA also concluded that the actions of the ICE agents, as described by Lopez-
Gabriel in his affidavit, did not support a claim of improper conduct, so there was no
reason to call the agents to testify. Because the DHS met its burden of proving
alienage, and Lopez-Gabriel failed to provide evidence of his legal presence in the
United States, the BIA affirmed the IJ’s removal decision.
II.
We review the BIA’s legal conclusions de novo. Ntangsi v. Gonzales, 475 F.3d
1007, 1011 (8th Cir. 2007). The underlying factual findings “are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir. 2007).
Lopez-Gabriel first argues that he established a prima facie case that Officer
Wiltrout stopped and arrested him based on race in violation of his constitutional
rights. On that basis, he contends that the BIA should have suppressed the resulting
evidence or at least afforded him an evidentiary hearing. He also contends that the
interrogations by local police and ICE officers caused him to make involuntary
statements, and that the IJ should have convened a hearing to consider this contention
as well.
The exclusionary rule generally does not apply in a civil deportation
proceeding. The Supreme Court explained that the high costs of applying the rule in
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the immigration context – namely, releasing from custody persons who would then
immediately resume their unlawful presence in the United States – outweigh the
benefits of deterring unconstitutional conduct by federal immigration agents. INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). The Supreme Court has “repeatedly
declined to extend the exclusionary rule to proceedings other than criminal trials.” Pa.
Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363 (1998). But because a plurality
of the Supreme Court noted that its decision on immigration proceedings did not
involve “egregious violations of Fourth Amendment or other liberties,” Lopez-
Mendoza, 468 U.S. at 1050, the application of the exclusionary rule to an immigration
case involving such violations has not been resolved in this circuit.
The case for exclusion of evidence is even weaker where the alleged
misconduct was committed by an agent of a separate sovereign. If evidence were
suppressed in a federal civil immigration proceeding, any deterrent effect on a local
police officer would be highly attenuated. See United States v. Janis, 428 U.S. 433,
457-58 (1976). The Court’s holding in Janis, albeit arising from a civil tax
proceeding, appeared to be categorical: “We therefore hold that the judicially created
exclusionary rule should not be extended to forbid the use in the civil proceeding of
one sovereign of evidence seized by a criminal law enforcement agent of another
sovereign.” Id. at 459-60. Especially where, as here, there is no evidence that federal
officers participated in the allegedly unconstitutional seizure, or that the state officer
making the seizure acted solely on behalf of the United States, cf. Elkins v. United
States, 364 U.S. 206, 213 (1960), we doubt that even an egregious violation by a state
officer would justify suppression of evidence in a federal immigration proceeding.
Cf. Puc-Ruiz v. Holder, 629 F.3d 771, 778 (8th Cir. 2010) (deeming it unnecessary to
decide the issue).
In any event, we agree with the BIA that the evidence of alleged “egregious
violations” here was insufficient to warrant a hearing on the petitioner’s motion to
suppress. In his affidavit, Lopez-Gabriel stated only that he “feels” the police stopped
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him because of his race, and he does not “believe” the police treated him the same
way they would treat white people. He offered no facts to support his assumption that
he was stopped and arrested based on his Hispanic appearance, so he was not entitled
to a hearing. See Wong Chung Che v. INS, 565 F.2d 166, 168 (1st Cir. 1977); Matter
of Wong, 13 I. & N. Dec. 820, 822 (BIA 1971); see also Almeida-Amaral v. Gonzales,
461 F.3d 231, 237 (2d Cir. 2006). The DHS, on the other hand, presented an
unrebutted police report declaring that Officer Wiltrout stopped Lopez-Gabriel for
driving with a heavily cracked windshield and arrested him for lack of proper
identification. Lopez-Gabriel did not contest the admission of this report before the
agency, so he cannot do so now, see Renteria-Ledesma v. Holder, 615 F.3d 903, 909
(8th Cir. 2010), and we see no reason in any case to believe that admission of the
police report was fundamentally unfair. See Nyama v. Ashcroft, 357 F.3d 812, 816
(8th Cir. 2004) (per curiam) (holding that in civil immigration proceedings, “[t]he sole
test for admission of evidence is whether the evidence is probative and its admission
is fundamentally fair”) (internal quotations omitted). Because the record contains no
support for Lopez-Gabriel’s belief that the traffic stop and arrest were racially
motivated, and because the DHS in any event justified the officer’s actions, see
Rampasard v. U.S. Att’y Gen., 147 F. App’x 90, 92 (11th Cir. 2005) (per curiam);
Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1988), there was no need for a
hearing or exclusion of evidence.
Lopez-Gabriel also argues that his statements to Officer Wiltrout and ICE
agents were involuntary, and were thus used against him in violation of his rights
under the Fifth Amendment. See Bustos-Torres v. INS, 898 F.2d 1053, 1057 (5th Cir.
1990). To establish that his statements were involuntary, Lopez-Gabriel “must show
coercion, duress, or improper action” by an officer that overbore his will. Puc-Ruiz,
629 F.3d at 779; United States v. Rodriguez-Hernandez, 353 F.3d 632, 636 (8th Cir.
2003). The allegations presented to the immigration judge failed to establish a prima
facie case of involuntariness. Without more, prompt questioning of a handcuffed
detainee by an armed and uniformed officer without Miranda warnings, and
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questioning by ICE agents after an arrest, are not sufficient to mandate a hearing or
to justify suppression in an immigration proceeding. See United States v. Drayton,
536 U.S. 194, 205 (2002) (“The presence of a holstered firearm [carried by a
uniformed officer] . . . is unlikely to contribute to the coerciveness of the encounter
absent active brandishing of the weapon.”); Puc-Ruiz, 629 F.3d at 779 (“[T]hat an
alien has not received Miranda-like warnings will not render his statements
inadmissible in a deportation hearing”); United States v. Willie, 462 F.3d 892, 897
(8th Cir. 2006) (holding that consent to search was not involuntary where handcuffed
defendant was under arrest for a short time and not subjected to extended
questioning); United States v. Robinson, 20 F.3d 320, 322-23 (8th Cir. 1994) (holding
that defendant’s statements were voluntary when made while handcuffed in the
presence of several police officers, immediately after he was detained and without
Miranda warnings). As noted by the immigration judge, Lopez-Gabriel did not
submit evidence of “promises, prolonged interrogation, interference with his right to
counsel, or other indicia of coercion or duress” that might suggest that his statements
were involuntary.
* * *
The petition for review is denied.
______________________________
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