Documente Academic
Documente Profesional
Documente Cultură
that he does not know the owner of the vehicle he was driving
that he was contacted by Facebook and ofered a job of driving the vehicle to El
Paso fr $600. 00 and trying to sell the vehicle
that he had been promised that there was nothing wrong with the vehicle by the
people who hired him
that he was "used" by the people that hired him, and that he is an honest man
and seeks to show his innocence
4. Motion to Suppress Respondent's Statements
Respondent has moved this cour to suppress any statements respondent made
to HSI Special Agents because such statements were suppressed by the District Cour
in the prior criminal proceedings against respondent. The motion will be denied.
Motions to suppress evidence in removal proceedings is a disfavored practice,
and will only be granted in the event of "egregious" violations of the respondent's
constitutional rights. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); U.S. v. Lopez
Oriz, 313 F.3d 225 (5
f
Cir. 2002). The Board of Immigration Appeals has promulgated
a type of "rule" when a respondent seeks to suppress evidence in a removal hearng.
Mater of Barcenas, 19 I. & N. Dec. 609 (BIA 1988). At a minimum, the respondent who
raises the claim regarding the legality of evidence must come forh with proof
establishing a prima facie case before the OHS will be called upon to assume the
burden of justifying the manner in which it obtained the evidence. Id. Where an alien
3 Respondent objected to the court's admission of these statements on the grounds that these very
same statements were suppressed in the United States District Court by the presiding judge. This issue is
discussed in more detail below.
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seeks to challenge the admissibility of a document, the mere ofering of an afidavit is
not suficient to sustain his burden, the alien must also suppor his claim by testimony.
Id.
In this case, respondent, through counsel alone, assered that his prior written
statements made to an HSI Special Agent must be suppressed in the removal hearing
because these same statements were suppressed by the District Cour in criminal
proceedings. The cour does not agree.
In the record is a copy of an order from the District Judge granting in part the
defendant's motion to suppress "all evidence obtained as a result of a confession
allegedly obtained in violation of Alejo's Fifh Amendment rights." In the body of this
decision and order, Judge Frank Montalvo determined that the respondent, who speaks
very little English, did not "knowingly and intelligently" waive his right to remain silent.
Thus, on a technical ground, Judge Montalvo fund that the statements made by
respondent, after he was taken from secondar into the head-house, and then
questioned by HSI Special Agents (in handcuffs), must be suppressed because the HSI
Agent did not advise the respondent of his Miranda rights in a language the respondent
understood well.
To the extent that respondent asserts that this order constitutes his "prima facie"
showing, the court will allow it (although it is not an affidavit from the respondent
himself. However, respondent still did not suppor his motion with testimony as
required by Ma er of Barcenas, supr. Additionally, the cour finds that this very minor
technical infraction by the HSI Special Agent does not constitute the type of egregious
conduct ariculated by the Supreme Cour (and Fifh Circuit) requiring the suppression
of what appears to be purely voluntary statements made by the respondent after being
caught with a substantial amount of marijuana in the vehicle he was driving. The record
suggests, instead, that respondent was attempting to converse with the agent in the
English language. There was a Spanish speaking agent who could have been called
upon to give these rights, but the cour finds that the HSI Agents prceeded in English
thinking that this is what the respondent wanted to do. No threats, no beatings, no
torure, etc. have been ariculated. Nothing egregious at all.
As such, the cour will deny respondent's motion to suppress his statements,
both because he fails to meet the procedural requirements of Barcenas, but also
because on the facts of this case, there was no egregious violation of the respondent's
Constitutional rights rising to the level of a Fifh Amendment due process violation.
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5. Statement of the Law
The term "reason to believe" is not defined by the Immigration and Nationality
Act or Board of Immigration Appeals precedent. "Reason to believe" is a proof
threshold on the hierarchy of proof that is greater than a reasonable suspicion but
below that of preponderance of the evidence.
The U.S. Supreme Court has interpreted the term "reason to believe" in INA
287 to be synonymous with "probable cause." U.S. v. Cortez, 449 U.S. 411 (1981 ).
The Cours have likewise held that the term "reason to believe" is synonymous with
"probable cause" in other contexts. Seel e.g., U.S. v. Gorman, 314F.3d 1105 (9th Cir.
2002) (holding that the "reason to believe11 standard for entr into a dwelling to execute
a search warrant required probable cause). The Board has also noted that the phrase
"reasonable ground to believe" is properly equated with "probable cause," which is a
less demanding standard than "preponderance of the evidence." Matter of A-H-, 23
l&N Dec. 774, 789 (A.G. 2005).
The Cours have held that "prbable cause11 is a practical, non-technical concept
that is defined by everyday experience. As such, it cannot be reduced to legal rules,
and it is not capable of being quantified or reduced to a percentages. Maryland v.
Pringle, 540 U.S. 366 (2003). Instead, probable cause determinations involve
common-sense conclusions about human behavior. Prbable cause exists if the totality
of the circumstances raises a paricularized suspicion that an individual is engaged in
wrongdoing. U.S. v. Corez, 499 U.S. at418.
Prbable cause is the reasonable belief that a crime was commited and that the
suspect perpetrated the crime. Wong Sun v. U.S., 371 U.S. 471 (1963). The suspicion
that the individual is engaged in wrongdoing must be based on "specific ariculable
facts, together with rational inferences from those facts." U.S. v. Brignoni-Ponce, 422
U.S. 873, 884 (1975). For example, in U.S. v. Brignoni-Ponce, the Cour stated that
prbable cause for stopping a vehicle fr alien smuggling could include such factors as:
1. the characteristics of the area in the vehicle is encountered,
2. the vehicle's prximity to the border,
3. the usual paterns of trafc on particular road the vehicle is encountered,
4. known alien trafic patters,
5. information about recent illegal borer crossings in the area,
6. erratic driving or obvious attempts to evade oficers,
7. aspects of the vehicle; such as station wagons, with large comparments
for fold-down seats or spare tires, used fr transporing concealed aliens;
the vehicle may appear to be heavily loaded; it may have an extraordinar
number of passengers: or the oficers may obsere persons trying to hide,
and
8. the characteristic appearance of persons who live in Mexico, such as the
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mode of dress and haircut.
In Illinois v. Gates, 462 U.S. 213 (1983) the Supreme Cour overurned the prior
"two-pronged" for probable cause and replaced it with a "totality of circumstances" test.
Gates made clear that 11probable cause,
,
may be sustained with evidence that does not
establish a 50% prbability of guilt.
No cour has held that the term "reason to believe" demands any level of
definitive proof. The BIA directly addressed a challenge to a "reason to believe" charge
in Matter of Rico, 16 l&N Dec. 181 (BIA 1977). In Rico, 162 pounds of marijuana were
found in concealed comparments of the vehicle during an inspection at a Port of Entry.
The alien driving the vehicle initially told investigators that the vehicle had been loaned
to him and that he did not know the vehicle contained marijuana. According to
investigators, he later stated that he had been paid to drive the vehicle acrss the
border and suspected that something was in the vehicle but that he did not know what.
A criminal complaint was initially filed against the alien but was later dismissed.
At his exclusion hearing, the alien testified that the vehicle was being loaned to him fr
one day while his car was being repaired, and that he never stated to investigators that
he had been paid to drive the vehicle across the border. The INS presented an
inspector who testified that he had obsered the alien driving the vehicle in question
through the POE on several other occasions. The Board held that presence of a large
quantity of drugs combined with implausible, contradictory testimony was suficient to
suppor a .. rason to believe" drg smuggling charge under INA 212(a)(23) (1975), re
codified as lNA 212(a)(2)(C) (1990,et. seq.).
In 11reason to believe" inadmissibility cases, the burden is on the alien to establish
that 11reason to believe" does not exist, In the case of an applicant fr admission,
however, the burden is on the alien to prove admissibility. INA 240(c)(2)(A).
Applicants for admission, by regulation, include aliens present in the United States who
have not been admitted or paroled or who seek entry at a place other than a designated
Por of Entry. 8 CFR 1235.1(d)(2). Moreover, 8 CFR 1240.8(c) exlicitly places on
aliens present without admission the burden of proving admissibility "clearly and beyond
a doubt." Arriving aliens must also establish admissibility "clearly and beyond a doubt."
8 CFR 1240.B(b ).
Conversely, in the case of lawul permanent residents, the burden is on the OHS
to establish removability by clear and convincing evidence pursuant to I NA
240(c)(3)(A). Although I NA 240(c)(2) makes no distinction between permanent
residents and other aliens, INA 101 (a)(13)(C) provides that "[a]n alien lawfully
admitted for permanent residence in the United States shall not be regarded as seeking
admission into the United States for purposes of the immigration laws [except under
cerain enumerated circumstances]. " One of the enumerated circumstances is
inadmissibility under INA 212(a)(2)(C). It is, however, the goverment's burden to
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establish that a permanent resident is "regarded as seeking admission." See Matter of
Rosas, 22 l&N Dec. 616 (BIA 1999); Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011 ).
Thus, in 212(a)(2)(C) cases involving lawful permanent residents, the DHS has
the burden of establishing that the alien is "seeking admission" (because there is clear
and convincing evidence to believe he is or has been a drug trafcker). If this burden is
met then the OHS has necessarily established inadmissibility under 212(a)(2)(C). But,
if the OHS does not establish that the lawful permanent resident is 11seeking admission,"
then inadmissibility charges are improper and removar proceedings must be terminated.
Many factors are potentially relevant to determine whether there is suficient
probable cause or "reason to believe" to suppor an INA 212(a)(2)(C) charge, and
some have been discussed in cour decisions. Nervous behavior is circumstantial
evidence of guilty knowledge. United States v. Casi a, 20 F.3d 600, 607 (5th Cir.
1994); United States v. Orega Reyna, 148 F. 3d 540, 544, (5th Cir. 1998.).
Consciousness of guilt may also be established by inconsistent statements and
implausible stories. United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994).
With regard to inconsistent statements made to the CBP Officers, "perhaps the
strngest evidence of a criminal defendant's guilty knowledge is inconsistent
statements to federal oficials." United States v. Diaz-Carreon, 915 F.2d 951, 954-55
(5th Cir. 1990). While an alien may profer an explanation about being solicited to work
as a document courier or shuttle driver, "a less-than-credible explanation" for a
defendant's actions is par of the overall circumstantial evidence from which guilty
knowledge may be inferred. Id. at 955.
Other relevant factors include (1) driving in tandem, (2) driving on a route
commonly used by smugglers, (3) false claim to citizenship, and (4) nerousness. See
U.S. v. Garcia-Barron, 116 F.3d 1305 (9th Cir. 1997). With respect to a drug-detecting
canine alerting (indicating a recent presence of narcotics), "[a] canine snif alone can
supply the probable cause" in the context of search warrant applications. United States
v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993). Also, although the informant's tip,
alone, is not necessarly reliable and may not constitute probable cause, it is a relevant
factor. See U.S. v. Villalobos, 161 F.3d 285 (5th Cir. 1998).
Even assuming that the alien did not definitively know that the vehicle contained
drugs and that he was "duped" by being told that he was merely transporing
documents, deliberate ignorance may substitute for guilty knowledge. While knowledge
on the par of the defendant cannot be established merely by demonstrating that the
defendant was negligent, careless, or foolish, knowledge can be inferred if the
defendant deliberately blinded himself to the existence of a fact. (5th Circuit Patter
Jur Instruction 1.37); see also United States v. Moreno, 185 F. 3d 465, 476 (5th Cir.
1999), cer. denied, 120 S.Ct. 835 (2000). Thus a purpored 11document courier" who
lied to the CBPO because his boss told him to lie cannot successfully argue lack of
knowledge, because a reasonable person would have known something was amiss if
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their employer instructed them to lie to federal oficiafs.
6. Analysis
We have a similar situation here in the respondent's case. At primar, and again
at secondar, respondent lied to CBP Oficers about the purpose of his trip, making up
a rather elaborate stor about travelling to Mexico to see his new born child, and then
returing to the United States to pick up the child's grandmother so she could visit the
child in Mexico. This was all a lie.
Afer the substantial quantity of marijuana is found in the vehicle respondent is
driving, respondent then tells the HSI Special Agents that he was contacted on Face
Book and ofered $600 to drive the vehicle from Juarez to El Paso Gust a matter of a
couple of miles), with the purpose of possibly then selfing the vehicle. Respondent then
tells the HSI agents that the people that hired him "promised" that there was nothing
"wrong" with the car, and that he was an honest man who was duped.
The diference between these two statements of purpose is astounding ... not
even close. As noted by the Fifth Circuit, such inconsistent statements made to federal
oficials is perhaps the strongest evidence of guilty knowledge. Citing, United States v.
Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990). Coupled with the nerousness of
the respondent at primar and secondary, the lane-check infrmation regarding the
vehicle respondent was driving, the aspect of the vehicle itself (large-capable of
transporing large amounts of contraband), and finalJy, the significantly large amount of
marijuana fund in the vehicle all point to respondent's knowledge or "willful blindness"
to facts that a reasonable person should know point towards something nefarious.
Mater of Rico, supra; United States v. Villarreal, 324 F.3d 319, 324 (5th Cir.
2003)(substantial value of drug load being transpored by respondent is circumstantial
evidence probative of knowledge since respondent would not be entrusted with such
valuable caro if he was not par of the trafcking scheme}.
Because respondent has refused to testify in his own defense, we only have one
side of the stor. Respondent refuses to explain his inconsistent statements, or furher
elaborate on his motives in driving this vehicle. Therefore, based upon the
uncontrovered evidence before it, the cour fnds that respondent knew or should have
known that he was driving a vehicle with some type of contraband in it. That
contraband turned out to be marijuana, a federally controlled substance. As such, the
court furher finds that the OHS has proven by clear and convincing evidence that
respondent was a knowing paricipant in drug trafficking by driving that vehicle from
Mexico into the United States. The cour furher finds respondent an applicant fr
admission who is otherise inadmissible to the United States under section
212(a)(2)(C) of the Act.
8
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7. Relief from Removal
Respondent has not identified any frm of relief from removal that is available to
him, nor is the cour aware of any relief.
8. Orders
ORDER: Respondent's motion to terminate removal proceedings is denied.
FURTHER
ORDER: Respondent's motion to suppress his written statements made to HSI
Special Agents is denied.
FURTHER
ORDER: Respondent is fund inadmissible as charged in the Notice to Appear.
FURTHER
ORDER: Respondent is ordered removed from the United States to Mexico.
William Lee AbBtt
Immigration Judge
9
Date: August 13, 2013
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