Appeal from the Board of Immigration Appeals A75-818-973-Chicago.
Before Flaum, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
The opinion of the court was delivered by: Flaum, Chief Judge.
The Board of Immigration Appeals ("BIA") dismissed Petitioner Santiago Martinez-Camargo's appeal and ordered him deported from the United States. Martinez-Camargo appeals that decision, and, for the reasons stated herein, we affirm.
On June 16, 1997, Martinez-Camargo and an acquaintance were sitting near a vacant parking lot in Summit, Illinois while Martinez-Camargo's friend changed the oil in his car. A police officer approached, instructed the men that they could not work in the vacant lot and asked for identification. Camargo-Martinez questioned why he had to provide identification when he "was just sitting there." The officer responded by radioing for support, and several patrol cars arrived on the scene. Immigration and Naturalization Service ("INS") Officer Charles Suchy, who regularly rode with Summit police officers as part of an INS task force, was among those who responded to the call.
When Suchy arrived at the scene, Summit police officers were conversing with Martinez-Camargo. Suchy testified before the Immigration Judge ("IJ") that the Summit police officers requested his assistance to translate for Martinez-Camargo, who spoke broken English. Suchy identified himself as an INS agent and asked Martinez-Camargo to produce a driver's license, as well as a second state identification card. Suchy also requested other biographical data, including Martinez-Camargo's date of birth, his address and where he was born. Martinez-Camargo responded that he was born in Mexico and resided illegally in the United States.
Suchy arrested Martinez-Camargo, handcuffed him, placed him in a police vehicle and transported him to the Summit Police Department. Upon arrival, Suchy photographed and fingerprinted Martinez-Camargo, and administered INS form I-826, which is a notice of rights and request for disposition. After inquiring whether Martinez-Camargo understood his rights as explained within form I-826, Suchy processed Martinez-Camargo by preparing INS Form I-213 (record of deportable alien).
The INS commenced removal proceedings by filing a Notice to Appear on June 16, 1997. Martinez-Camargo appeared for a removal hearing on October 14, 1997, at which time Martinez-Camargo indicated that he intended to file a motion to suppress all evidence resulting from his arrest. The IJ held a hearing regarding the motion to suppress on March 27, 1998. Martinez-Camargo argued that his arrest constituted an egregious violation of both the Fourth and Fifth Amendments to the United States Constitution. In addition, Martinez-Camargo maintained that his arrest violated 8 C.F.R. sec. 287.3(a), which states:
An alien arrested without a warrant of arrest under the authority contained in section 287(a)(2) of the Act will be examined by an officer other than the arresting officer. If no other qualified officer is readily available and the taking of the alien before another officer would entail unnecessary delay, the arresting officer, if the conduct of such examination is a part of the duties assigned to him or her, may examine the alien.
The IJ held that the exclusionary rule was inapplicable in immigration proceedings and that Martinez-Camargo failed to demonstrate the egregious constitutional violation necessary to exclude evidence in deportation proceedings. The IJ noted that Officer Suchy was riding with the Summit Police Department as part of an immigration task force, that officers requested his assistance in translating, and that his sole reason for arriving on the scene was to investigate an allegation of a street disturbance. In addition, the IJ ruled that there was "substantial compliance with the Code of Federal Regulations under Section 287.3," and thus denied Martinez-Camargo's motion to suppress. The IJ accordingly ordered Martinez-Camargo deported.
Martinez-Camargo appealed to the BIA and raised the same two issues. The BIA affirmed the order of deportation, holding that Officer Suchy had reasonable articulable suspicion to question Martinez-Camargo because Martinez-Camargo had already been detained by local officers. Moreover, the BIA reasoned that even if Officer Suchy instigated a "second stop" by questioning Martinez-Camargo regarding his citizenship, the brief interrogation was not an egregious constitutional violation warranting exclusion. With respect to Officer Suchy's violation of Section 287.3, the BIA held that Martinez-Camargo presented no additional evidence to establish that his admissions were coerced or otherwise prejudiced by the circumstances of his examination. As such, the evidence obtained by Officer Suchy was inherently trustworthy and admissible to prove alienage and deportability.
One member of the BIA panel dissented. The dissenting Board Member wrote that the violation of the federal regulation governing aliens arrested without a warrant undermined the admissibility of INS Form I-213 (record of deportable alien). Because the INS failed to introduce evidence that another officer was unavailable, or that unnecessary delay would result, the dissenting Board Member stated that the regulatory ...