Submitted: Sept. 25, 2013.
Raymond Reza Bolourtchi, argued, Ladue, MO, for Petitioners.
Stuart Nickum, argued, Anthony C. Payne, on the brief, Civil Division, Office of Immigration Litigation, argued, Washington, DC, for Respondent.
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Armando Lopez-Fernandez and Nury Felix-Jimenez (collectively, Petitioners) are husband and wife as well as natives and citizens of Mexico. They petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing their appeal from an Immigration Judge (IJ) order denying their motion to suppress evidence and terminate deportation proceedings. The Petitioners assert that Immigration and Customs Enforcement (ICE) officers obtained evidence of their alienage, specifically their statements and passports, in violation of their rights under the Fourth Amendment. They also assert that the denial of an evidentiary hearing regarding suppression of that evidence violated their Fifth Amendment rights to due process of law. Because the Petitioners failed to present a prima facie case that the evidence could be suppressed, we deny the petition.
On December 9, 2008, six officers, including ICE agents and police officers, entered and conducted a search of the Petitioners' home in St. Louis, Missouri. Some of the agents were armed. While the officers were in their home, the Petitioners provided statements concerning their alienage and produced Mexican passports when asked for identification. With this information, the agents concluded that both of the Petitioners were illegal aliens and prepared a Record of Deportable/Inadmissible Alien Form (Form I-213) relating to each Petitioner. The Forms I-213 contained a narrative of events and findings as a result of the search. The Department of Homeland Security commenced removal proceedings and offered the Petitioners' respective Forms I-213 at those proceedings.
The Petitioners moved for an evidentiary hearing regarding the admissibility of the Forms I-213. They also moved to suppress the Forms I-213 and to terminate the proceedings. The Petitioners alleged Fourth Amendment violations with respect to the search, Fifth Amendment violations as to statements obtained during an unlawful custodial interrogation, and violations of internal agency regulations.
In support of their motions, the Petitioners each submitted affidavits detailing their versions of the officers' entry into and search of their home. Felix-Jimenez stated that, on the day in question, she was in the shower at approximately 7:00 a.m. when she heard banging on her front door. Approaching the door, she saw someone shining a flashlight in the window. She cracked open the door to see who was there, and " the door was forced open hard and six people charged in.... They did not identify themselves or ask for permission to enter; they just barged in." Pet'r's App. at 181. The six officers searched the home and questioned Felix-Jimenez. Later, when Lopez-Fernandez returned home, the Petitioners were both put in handcuffs and taken to the Detention and Removal office in St. Louis, Missouri. According to Felix-Jimenez, the officers were very intimidating, and she
would not have answered their questions had she known that she did not have to do so.
Lopez-Fernandez stated via separate affidavit that when he returned home at approximately 8:00 a.m., six officers were inside his home. Lopez-Fernandez also asserted that it was " clear that [he] was not free to leave" and that the officers did not show him a warrant. Pet'r's App. at 188. Like Felix-Jimenez, Lopez-Fernandez stated he would not have answered the officers' questions if he had known that he did not have to do so.
The Forms I-213 contain a different version of the events. They reflect that a named informant contacted the State Highway Patrol, provided information regarding the use of false social security numbers by persons residing at the Petitioners' address, and requested an investigation into the immigration status of those persons. Acting on that information, the agents went to the Petitioners' home at 7:30 a.m., and Felix-Jimenez invited them in. Lopez-Fernandez soon returned home, and, after the Petitioners ...